Bolger v Barclays Bank International Ltd

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Malone, C.J.
• Judgment Date: 31 August 1977
• Docket Number: Civil Action No. 28 of 1972
• Date: 31 August 1977

Supreme Court

Malone, C.J.

Civil Action No. 28 of 1972

Bolger

and

Barclays Bank International Limited

The plaintiff in person

Mr. D. Courtenay for the defendant

Before the Hon. Sir Denis Malone, Chief Justice

Criminal Law - Forgery

Facts: Memorandum of deposit of deeds executed by plaintiff as security for repayment of overdraft made to plaintiff by defendant - Pleadings admit deposit of deeds with Bank for overdraft - Plaintiff claims memorandum a forgery - Evidence of handwriting expert called by plaintiff rejected

Held: Signatures made by one and the same hand. Judgment entered for defendant with costs.

1 The plaintiff's claim is for damages for forgery. By her statement of claim issued on the 25th February 1972 she alleges that in or about March 1968 she first became aware of the existence of a Memorandum of Deposit of Deeds recorded at the General Registry in Deeds Book Volume 3 of 1969 at folios 582 - 589 and dated the 23rd April 1969, to which the defendant had forged her signature. Because of the existence of that document the plaintiff further alleges that she was obliged to sell her property known as “Richdew” situate at about mile 11 on the Northern highway and thereby suffered loss. In answer, the defendant pleads that the Memorandum was executed by plaintiff as security for the repayment of an overdraft made to the plaintiff by the defendant. The first issue to be determined - and if resolved in favour of the defendant the only issue that has to be determined – is therefore a straightforward one of fact which can be expressed in the question: is the Memorandum a forgery? Its resolution in part depends upon the evidence adduced by both sides from their respective experts on handwriting.

2 The expert witness for the plaintiff is a Mr. Lester Herstedt who is employed in the Reservations office of National Airlines at Miami, Florida, U.S.A. but who claims that for the past 21 years he has dedicated himself to the study of grapho-analysis which concerns document examination and the stroke analysis of handwriting and that he is a member of the International Graphoanalysis Society. Mr. Herstedt maintained that the handwriting of an individual is not constant. For a number of reasons it will display variations and indeed may change in style after a passage of years. Using two known genuine signatures of the plaintiff taken from letters of the plaintiff of or about the 5th May 1966 and the 13th June 1966 Mr. Herstedt compared these signatures with the two purported signatures of the plaintiff on the Memorandum of Deposit of Deeds and the schedule thereto and with two other signatures to be found on a document of the defendant described as a Security Register which the plaintiff also alleged were not hers. Upon making those comparisons Mr. Herstedt found a number of variations between the genuine signatures and the alleged forgeries which led him to the conclusion that the probability was very remote that the alleged forgeries were genuine. Mr. Herstedt had also in 1973, when consulted by the plaintiff compared photostat copies of the signatures appearing on the Memorandum and the Schedule thereto with a photostat copy of an alleged signature of the plaintiff of the year 1968, three photostat copies of alleged signatures of the plaintiff of the year 1971 and four photostat copies of alleged signatures of the plaintiff of the year 1973. At the conclusion of that comparison he had submitted to the plaintiff a report dated the 3rd September 1973 in which he records his opinion that the photostat copies of the signatures appearing on the Memorandum and Schedule thereto were not written by the plaintiff. That opinion is however open to question as in cross-examination Mr. Herstedt admitted that when he made the comparison in 1973 he did not know if the signatures of 1968, 1971 and 1973 had in fact been written by the plaintiff. The only evidence adduced for the plaintiff that they are the plaintiff's genuine signatures was when later in his cross-examination Mr. Herstedt said that:” Yesterday I saw the plaintiff write and then I knew that the signatures I examined were hers.”

3 Of more serious concern as regards the soundness of Mr. Herstedt's opinion is the weight to be given to the emphasis he places on variations between the signatures considered by him to be the plaintiff's genuine signatures, namely the signature of 1968, and those of 1971 and 1973 and the signatures on the Memorandum and Schedule thereto. This is a matter of some importance as Mr. Herstedt admitted that because he had not until a few days before the trial the material he would have liked to have had in order to form an opinion, he could not give as good an opinion as he would have liked to have given. Consequently in answer to the court's question: “Does that mean that your opinion did not carry as much certainty in your mind as you would have like it to have done?” He replied “Yes Sir. That would be true.” In fairness to Mr. Herstedt it has however to be remembered that he had at the trial the known genuine signature of the letter of about the 5th May 1966 and that of the letter of the 13th June 1966. Nevertheless, one is left to wonder whether, on the one hand, the opinion of 1973, based as it was on photostats and not upon originals, can be regarded as sound and on the other hand whether, an opinion based on only two original genuine signatures can be regarded as sound when, as Mr. Herstedt himself stated, signatures made by the same hand are capable of many variations. Of course Mr. Herstedt's evidence must be considered as a whole. Variations to which Mr. Herstedt drew the court's attention in making his comparison between the signatures of the letters of about the 5th May 1966 and the 13th June 1966 on the one hand and the signatures on the Memorandum and Schedule thereto on the other, were the following:

1

the proportions of the height and width of the capital “A” in “Avis”; 2. the formation of the “v” in “Avis”; 3. the position of the dot over the “i” in “Avis”; 4. the formation of the “s” in “Avis”; 5. the relative height of the capital “B” in “Bolger” in relation to the capital “A” in “Avis”; 6. the distance of the “o” and “l” in “Bolger” from the capital “B”. 7. the formation of the “o” and “l” in “Bolger”; 8. the formation of the “g” in “Bolger”; 9. the formation of “er” in “Bolger”; and 10. the length and position of the underscore to the signature.

4 I do not claim to be a handwriting expert nor is it my intention to turn myself into one for the purposes of this case, but I find myself to be in agreement with Mr. Davis - the expert witness for the defence - that when known genuine signatures of the plaintiff, other than those of the letters of about the 5th May 1966 and the 13 ^th June 1966, are compared to the signatures on the Memorandum and Schedule thereto, the variations in the latter signatures from the signatures in the letters of about the 5th May 1966 and the 13th June 1966 are to be found in those other genuine signatures. The following must serve as examples. To my eyes the capital “A” of “Avis” on Ex. A.B. 4 is identical to the capital “A” of “Avis” in the Schedule to the Memorandum. Further when the relative heights of the capital “A” of “Avis” and the capital “B” of Bolger” on Ex. A.B. 4 are noted, they seem to me to match the relative heights of those letters in the Memorandum so refuting Mr. Herstedt's opinion that the capital “B” of “Bolger” in a genuine signature should not be as tall as the capital “A” in the alleged forgery. I cannot venture to make a complete comparison of the “v” in “Avis” as the variation noted by Mr. Herstedt is in part based on the pressure used to make the letter and that comparison I do not consider myself capable, as a layman in this field, to make. To my mind however the “v” section of the “v” in “Avis” in Ex. A.B. 6 is by no means as deep as the “v” of “Avis” in the letters of about the 5th May 1966 and that of the 13th June, nor as deep as the “v” section of the “v's” in “Avis” on the Memorandum and the Schedule thereto. Yet it is a known genuine “v” of the plaintiff and so refutes, to my mind, the opinion of Mr. Herstedt that a genuine “v” of the plaintiff is always deeper than the “v's” of the questioned documents. In the case of the signature in the letter of the 13th June 1966, the dot over the “i” of “Avis” would seem to me to be positioned where, according to Mr. Herstedt, it is to be found in a false signature: namely over the “i”. But if, as he says, a genuine signature...