Full Police Report On PM's Art Forgery
21 June 2002
Deputy Commissioner: Operations
OFFICE OF THE COMMISSIONER
ALLEGATION OF FORGERY
This report refers to the enquiry completed following receipt of a complaint that the Prime Minister, the Rt Hon Helen Clark, may have committed a criminal offence by signing paintings or drawings completed by another. The complaint followed related media commentary.
Possible criminal offences are discussed in the context of the facts identified during this enquiry. Legal advice has been taken into account in the analysis of possible offences.
Miss Clark was invited, through her solicitor, to respond to the allegations relating to the painting auctioned in 1999 by Save Animals from Exploitation (SAFE). Through her Counsel, Miss Clark has provided a prepared statement regarding that incident which is attached. Miss Clark was not asked for an explanation relating to the other matters-outlined in this report. As is clear from the analysis section of the report, there- is insufficient evidence to establish the relevant intent for any offence arising from these other matters.
Finally the report makes recommendations to the Commissioner of Police with respect to possible offences disclosed.
2 Media Allegations
2.1 SAFE Painting
On 14 April 2002 the Sunday Star Times newspaper ran a feature story alleging that Miss Clark had passed off as her own work a painting completed by somebody else.. The painting was sold at a celebrity art auction organised by SAFE (Save Animals from Exploitation) in March 1999. According to the media report, Miss Clark acknowledged the allegation in the story.
Miss Clark has provided a copy of her media statement in response to the, story in which she acknowledges that putting her name to a painting she didn't do was an error of judgment which she deeply regrets and for which she apologises. The media statement initialled by Miss Clark notes that she was trying to be helpful to a charity.
The Sunday Star Times story included comment from the purchaser expressing his dissatisfaction, and comments from some in the legal fraternity alleging a conspiracy to defraud or forgery had been committed.
2.2 Ponsonby Primary School "Doodle"
On 15 April 2002 Miss Clark was reported to have acknowledged that she had signed artworks completed by another person on five or six occasions. One of these occasions was identified as a doodle completed for Ponsonby Primary School.
In the week following the publication of these events there was significant media interest. The circumstances were reported in both national and overseas media.
2.3 Moa Drawing
On 15 May 2002 the Dominion feat used a story about a Dunedin man who had approached the Otago Daily Times with a drawing apparently completed in 1995 by Miss Clerk. He was questioning the drawing's authenticity.
Later that day Miss Clerk acknowledged in the House that the drawing of a Moa was a drawing she had signed although it was the work of someone else. She confirmed this was one of the drawings she had earlier referred to when speaking about the Ponsonby Primary doodle.
3 Role of the Complainant
By letter dated 15 April 2001Mr Graham Sharpe, a Wellington resident, wrote to police asking them to investigate a possible breach of the Crimes Act. This complaint related specifically to the story concerning the SAFE painting printed on 14.04.02 in the Sunday Star Times.
Mr Sharpe had no direct involvement in this transaction or any of the other matters at the heart of this enquiry
4 Police Enquiry Action
On receipt of the complaint background material about the reported incidents was obtained. That process was accompanied by a formal approach to the Solicitor General to advise on constitutional matters that might arise in any enquiry involving Miss Clerk.
Prior to that advice being received, media reports suggested that an unknown purchaser had bought the SAFE painting for the purpose of destruction. Those media *comments were attributed to the vendor Mr H van Dijk, At that point police enquiries were made in Auckland to locate the painting.
Those enquiries also dealt with the Ponsonby Primary School auction. Analysis of comments about the painting and the drawing suggested that there were factual matters and legal issues common to both incidents.
The enquiry has focussed on those people who made (or caused to be made) the relevant painting or drawings, and those people who received the painting or drawings and acted upon them.
No enquiry has been initiated to try and locate other items that may exist.
The facts obtained from the enquiries completed provided the basis for informed legal opinion as to whether, or to what extent, any criminal liability was disclosed.
5 Incident Details
5.1 SAFE Painting
In 1997 the then directors of Save Animals from Exploitation, Gary Reese and Anthony Terry, decided to hold a celebrity art auction to raise the profile of their organisation and to raise funds.
The project gained momentum in mid 1998. At that point Mr Reese, with the assistance of a temporary employee XXXXX XXXX, took an active role in the project.
Expressions of interest were sought from a range of personalities. These requests were made in writing and by telephone. Most of the people who said they could assist were subsequently sent a canvas to complete the work. Some of those contacted returned an item of artwork without being sent a canvas.
Whilst it is still not clear how the request to Miss Clark was couched, a canvas did arrive in the office of the Leader of the Opposition. The canvas, together with a request for a painting, was apparently sent with other similar requests to Miss Clark for her consideration. The canvas was later returned with a note attached. The note said "no time". Staff in Miss Clark's office understood this to mean she had no time to complete the Work, and it would not therefore be done.
Despite this apparent understanding, a staff member in the office, Dawn Bush, took the canvas and arranged through her daughter-in-law for a painting to be completed by Lauren Fouhy, an amateur artist from Paraparaumu. Mrs Fouhy was aware that she was doing the work for Miss Clark to send to a charity. On completion it was returned to. Mrs Bush.
Mrs Bush took the completed and unsigned painting into the office and whilst she is not sure of the actual words used, concedes that she must have asked Miss Clark to sign it. She recalls Miss Clark asking which way up the painting should be hung, and commenting about the quality of the painting. It is then her recollection that Miss Clark signed "Helen Clark' on the rear of the painting with, a biro pen.
Miss Clark states that she does not recall signing the . painting but acknowledges that she did so. She has stated that she has no independent recollection of any of the events surrounding this painting. She states that requests such as these were handled by staff according to their own procedures. She does not recall any request being brought to her attention, nor any discussion or instructions relating to this item.
Mrs Bush cannot recall if there was a signature on the front of the painting and has no recollection of Miss Clark signing the front.
People who have seen the painting claim there is a Clark signature on the front of the painting.
Document examiners, examining a. photographic negative of the painting could not locate the signature.
Expert opinion confirms that it is not uncommon for some artists to sign their works on the rear of their artwork.
Mrs Bush then arranged for the painting to be couriered to SAFE. She telephoned the organisation to advise them the painting was on. its way. XXXXX XW recalls the conversation, and her request to Mrs Bush to pass on the thanks of the organisation to Miss Clark.
After a good deal of pre-event publicity and a ten-day exhibition -the items were auctioned at the Sky City Casino on 5 March 1999. The pre-event publicity by SAFE specifically referred to the fact that Miss Clark had completed the work herself.
There does not appear to have been any rebuttal of this information by Miss Clark or anyone from her office. Miss Clark states that she has no recollection of any media reports about the charity auction and that reports of this kind would not normally have been included in the media summaries prepared by her staff while she was the Leader of the Opposition.
On the day of the auction the auctioneer offered the work as an original item. executed and signed by Miss Clark, the then Leader of the Opposition. A Mr Henridus van Dijk purchased the painting for $1000. The proceeds went to SAFE.
Mr van Dijk framed the canvas and hung it in his house. It was his belief, based on what he had been told at the auction that this was an original work executed and signed by Miss Clark. Mr van Dijk is clear he would not have paid more than $60 for the item without that belief.
In April 2002 the Sunday Star Times newspaper story, including an acknowledgment by Miss Clark of her part in completing the work, established the true authorship of the painting.
Following publication of the newspaper article Mr van Dijk received a cheque dated 12 April 2002, drawn on the account of H.E. Clark, for $1000. Miss Clark states that she sent a personal cheque to the person reported to have obtained the painting without being aware that there was any suggestion of a breach of the law. She states she sent the cheque because it was unacceptable to her that anyone should feel aggrieved by her conduct.
In the weeks following Mr van Dijk arranged to auction the painting through Webbs Gallery, Newmarket. There was no interest expressed in the item prior to the auction with the exception of one offer of $5,000, plus $500 toward advertising expenses, from Mr Simon Mitchell. On 3 May 2002 Mr van Dijk accepted that offer, subject to a guarantee about the form of payment, and Mr Mitchell purchased the painting. The proceeds of this sale also went to SAFE.
On 5. May 2002 Mr Mitchell gavb the painting as a gift to Miss Clark's Auckland Executive Assistant, Mrs Joan Caulfield. He had previously discussed the purchase with Mrs Caulfield. Mrs Caulfield sought advice from Miss Clark as to what she might do with the painting. Mrs Caulfield states she was told to do with it as she liked. Miss Clark has not commented on this matter in her statement to Police.
Mrs Caulfield, acting on her own initiative, destroyed the painting with the assistance of her husband.
The painting was partially destroyed on 5 May 2002. The destruction was completed the following morning when the canvas was burned.
Mr van Dijk, the original purchaser, is not interested in making any complaint to Police about these events.
5.2 Ponsonby Primary School Doodle
In February/March of 2001 the Ponsonby Primary School initiated a project that they called the Maggi Two-Minute Doodle.
The purpose of the project was to obtain a celebrity doodle for auction to raise funds for the completion of the school hall.
A number of people were approached to contribute. Some of these people were approached through parents at the school. One of the parents, Mr Christopher Money, approached Mr Chris Carter, the Junior Labour Party Whip to obtain a doodle completed by Miss Clark. Mr Money and Mr Carter have a personal friendship. Mr Carter agreed to the request.
A pack containing a piece of paper, a pen and instructions on what was required was given to Mr Carter to pass on to Miss Clark.
The original pack was apparently lost after it was given to Miss Clark at a caucus meeting in Wellington. A second piece of paper and pen were delivered to Miss Clark's office. In due course a sketch of the Beehive, signed by Miss Clark, was delivered through the mail to Mr Money. There was no accompanying correspondence with the drawing.
The item was subsequently featured in media coverage of the auction as a work completed by Miss Clark. Again there appears to have been no rebuttal from Miss Clark's office.
On 28 June 2001 this item was auctioned as lot 6 of 42 items included in the live auction. 86 other items were sold by silent auction. The Clark item fetched $1300 and was purchased by Mr and Mrs XXXXXXXXXXXXX xxxxXX Mr Money rang Mr Carter that night, advised him of the result, and asked him to pass on his thanks to Miss Clark. Mr ' Carter apparently agreed to do so, commenting at the time that Miss Clark "will be amused". Cellphone records on Mr Money's account verify a call to Mr Carter. Mr Carter cannot recall this call, or the conversation referred to by Mr Money.
Subsequent enquiries have confirmed that Mr Alec McLean, Miss Clark's Principal Private Secretary, completed the drawing. He stated this was done after the item had remained unattended in his office for some days. He said he completed the drawing without Miss Clark's knowledge or consent. Mr McLean gave the completed drawing to Miss Clark to sign, apparently without any discussion. Mr McLean states that he told Mr Carter or his Secretary about the process used to manufacture this drawing.
Mr McLean was aware of the subsequent media publicity that suggested Miss Clark had drawn the doodle. He states that it didn't occur to him to set the record straight.
Mr Carter's secretary, Serge Sablyak, has stated that he took a piece of paper and a pen to Miss Clark's office, and returned within thirty minutes to uplift a drawing. He states that he had no knowledge of how the drawing was completed. He says that he delivered the drawing to Mr Carter and then overheard a telephone conversation between Mr Carter and someone called Chris. He states that in that call Mr Carter said Miss Clark had been too busy and a staff member had done it. Mr Sablyak assumed that call was to Chris Money.
Mr Carter states that he gave the initial pack with materials and the request for the doodle to Miss Clark at a caucus meeting. He followed this up with a series of telephone calls to Mr McLean. He was told at some point that Mr McLean could not find the pack. He confirms that he and his secretary then purchased paper and a pen, and that these were delivered to Mr McLean.
Mr Carter's initial recollection was that he followed this up with a telephone call to Mr McLean the following day, and later that day received a call to say the item was complete. When Mr Sablyak's timings for completion of the item were put to him Mr Carter agreed they might be correct, however his recollection was that the completion of the drawing took place over a time span of a day.
Mr Carter confirms Mr Sablyak's assumption, stating that he then made a telephone call to Mr Money asking where the doodle should be sent and telling Mr Money how the item was completed. He states that he made a joke of it. Mr Carter initially stated that he said, "Alec was a lousy artist". Later in his statement he said that he told Mr Money that a member of Miss Clark's staff had done the drawing, that "he" was a lousy artist, but did not identify who this person was to Mr Money.
Mr Money accepts that there was a call to obtain instructions on where to send the item, He disputes any conversation about someone other than Miss Clark completing the drawing. He is adamant he would have recalled these comments, particularly if they were expressed in the manner described by Mr Carter.
He further states that if he had been aware of the true manner in which the drawing had been completed he would not have ' sent it on to the school, but would instead have retained it himself. Mrs Money, who took the drawing to the school said that she would not have done so if she had known it was completed by anyone other than Miss Clark.
Following publication of the Sunday Star Times article, Miss Clark late on 15 April 2002 apparently identified this item as one that she had not drawn but had signed. She is reported as saying that Mr Carter had been advised of that fact at the time the work was completed.
Mr Carter has since been interviewed and confirms Miss Clark's comments. There is however some difference between Mr Carter and those involved with the school with respect to these events. The events are therefore discussed in some detail below.
Mr Carter states that he rang the school on 15 April 2002 in his role as a Party Whip, to discuss this item. Mr Carter states that the purpose of this call was to determine the price the item sold for, and the views of the school. He states that the principal, Mrs Malcolm, expressed the view that she thought a' number of the items offered for sale were not completed by the person who signed them., His recollection of this conversation is substantially different from that of Mrs Malcolm. Mrs Malcolm is adamant that she made no comments to that effect and points out that the one item the school knew had not been completed by the person associated with it had been given away for nothing.
She recalls Mr Carter asking how the school would feel ' about Miss Clark releasing information that the doodle had been completed by someone else and signed by her. Mrs Malcolm states that her response was that she would be disappointed, or words to that effect, but that the school was happy to have paid for their new hall. Mr Carter recalls the latter comment but not the former.
Mr Carter also states that he rang the school on a second occasion. He states that either then, or in the earlier conversation, he and Mrs Malcolm discussed how upset the purchasers were with the media comments. He also states that they discussed that Mr Money was concerned about how these events reflected on him in the school community.
Mrs Malcolm has no recollection of a second call from Mr Carter and nor has her secretary. The conversation described by Mr Carter could not have taken place during the call Mrs Malcolm does recollect, as there had been no media interest at that stage.
On the 15 April 2002 Mr Carter also rang Mr Money. He states that he rang him on this occasion to find the amount paid for the doodle at auction. Mr Money and his wife recall a conversation about the price of the item during a call with Mr Carter. They state that could have been on 15 April 2002 but cannot recall where in the sequence of calls this occurred.
Mr Money states that he received a call about 3.00 p.m. on 15 April 2002 from Mr Carter, in. which Mr Carter asserted that he had advised the school, through Mr Money, that Miss Clark had only signed the work in the auction. Mr Money states that he told Mr Carter he would discuss the issue with Mrs Malcolm and call him back, without at that point agreeing or disagreeing with Mr Carter's assertion.
Mr Money states he then rang Mr Carter back. His initial recollection was that this call was about 3.30 p.m. on 15 April 2002. This second call appears to be the call recorded on Mr Money's telephone records at 1852 hrs on 15 April 2002. During this conversation Mr Money states that he told Mr Carter that he had no prior knowledge of the fact that Miss Clark had not drawn the doodle. This allegedly led to a discussion described by Mr Carter as "robust", and by Mr Money as "heated".
Mr Carter's recollection was' that both these calls took place on 16 April 2002 with the later call being received on his cell phone in the evening as he walked home from Parliament.
Mr Carter was asked to provide telephone records relevant to the enquiry to help clarify the timings of these calls. He declined access to the records on the basis that they were confidential.
There is therefore conflicting evidence about how this item was created and how it was represented.
Mr McLean, Mr Carter and Mr Sablyak all have different recollections of events around the completion of this item. There is direct conflict between Mr Carter and Mr Sablyak on the one hand, and Mr Money, and to a limited extent Mrs Money on the other about how it was represented. There is also conflict about the timing and content of telephone discussions of this item between Mr Carter, and Mr Money and Mrs Malcolm.
There is limited independent evidence to corroborate the account of any party. What independent evidence there is tends to support the statements from Mr Money and Mrs Malcolm. The lack of certainty in the evidence raises at least an inference that the doodle may be a "document" with the same legal issues and consequences as the SAFE painting. It has therefore been considered further in terms of the discussion of relevant criminal liability.
The purchasers, Mr and Mrs XXXXXXX, do not wish to make any complaint about the item they purchased.
5.3 Moa drawing
Following publicity about the Moa drawing, police. enquiries have confirmed that a Dunedin couple purchased the drawing in 1 9~ 5~ at a Rotary auction held for the benefit of Queens School. They paid $80,00 for the item. The item is drawn in one pen and signed in another. ..The signature is in different coloured ink to the sketch.
In an interview with Police on 20 May 2002 Miss Clark's Private Secretary, Jane Leicester, said that she had arranged for a drawing of a Moa to be completed by another staff member. She stated that she could not recall whom that staff member was. The drawing was then sent to Miss Clark for her to sign. This appears to have been conducted in the normal transmission of office correspondence.
When it was returned as a signed picture Leicester sent it to the auction organisers in Dunedin.
Enquiries with the purchasers, Mr and Mrs Grey, and the auctioneer Mr Grimmer have been completed. The auctioneer recalls prefacing the sale of this work with a comment that Miss Clark donated this work.
The purchasers cannot recall what comments were made about the authenticity of the drawing. They do not wish to make any complaint to Police.
The comments by the auctioneer appear to eliminate any suggestion of fraud or misrepresentation in this instance. The manner in which the item was completed appears to minimise any intention to deceive.
It is suggested this item is similar to an autographed wine bottle in that it was a work autographed by Miss Clark. The work and the way it was represented do not appear to suggest that it was executed and signed by Miss Clark.
On that basis the Moa drawing has not been further considered in this report.
6 Complaint Analysis
The possible offences these facts disclose in relation to the manufacture and use of the documents are found in the Crimes Act 1961, Section X (Crimes Against Rights of Property). Consideration has also been given to those sections of the Crimes Act dealing with crimes against administration and accessory after the fact.
Outlined below are the specific sections thought most applicable on the facts. Legal advice has been sought on the law relevant to these sections in the circumstances disclosed by the enquiry.
6.1 Section 264 Forgery
"Forgery is making a false document, knowing it to be false, with the intent that it shall in any way be used or acted upon as genuine..." This section does not require any intention to defraud, merely an intention that the false document be used or acted on as genuine.
Sub section 3 defines when forgery is, complete, namely when such a document is made with the required knowledge and intent.
Section 263 of the Act defines a false document as a document
(a) of which the whole or an material part purports to be made by any person y who did not make it or authorise its making or
(b) of which the whole or any material part purports to be made on behalf of any person who did not authorise its making or
(c) In which, though it purports to be made by the person who did in fact make it or authorise its making ... any number or distinguishing mark identifying the document, where either is material, is falsely stated.
For the purposes of section 264, a painting or drawing without any writing on it is not a document. The Court of Appeal. has accepted in R v Sim  1 NZI-R 356 that a painting becomes a document for the purposes of sections 264 to 279 of the Crimes Act 1961 when there is a signature affixed to it. This definition is specific to those sections of the Act. Therefore at the point when Miss Clark signed the painting or drawings she made a document.
The central issue is considered to be, does the signature added to the painting or drawing by Miss Clark make the item a false document? A preliminary view was that it does - indeed commonly understood conventions about the creation of artwork suggest this must be so. There is a general understanding that the person who signs a painting or drawing is the author of the painting or drawing. The signature on the document suggests. the work is completed by Miss Clark, which it demonstrably was not.
Early legal advice suggested a contrary view that Miss Clark, by signing the document, "authorised the making thereof', and that the document may not have therefore constituted a false document.
According to this view of the law a signature on a canvas or parchment is what turns a painting or drawing into a "document", and in this case the penned signatures are clearly genuine. This view suggests the authorisation of the painting can occur after the event through adoption of the work by the person signing it.
A closer analysis of the issues has established that this early advice is not supported in law. This latter view supports the proposition that the person signing a painting is deemed to be the artist. Where the person who signs the painting did not complete the body of the painting, the painting becomes a false document.
It follows that by signing the painting completed without her authority Miss Clark creates a document.
Through the signature, the document falsely claims to have been entirely completed by her. The document therefore tells a lie about itself and is a false document.
The next issue to consider is the intent of the parties at the time the document was made. For the sake of clarity the facts surrounding the two items, the SAFE painting and the Ponsonby Primary School doodle, are considered separately.
6.1.1 SAFE Painting
It seems compelling, on an objective view of the evidence, that there was an intention for the completed painting to be acted upon as if it were genuine.
Prior to the painting being completed Mrs Fouhy states she was instructed to make it look amateurish.
There is some dispute about how that instruction came about. Mrs Bush states that she did not give that instruction but when told the painting would not be very professional she confirmed that it "would not want to be professional, amateur would be fine". This tends to suggest an intention, at least by Mrs Bush, to pass the work off as an amateur effort by Miss Clark.
The act of signing the painting is further evidence that it would be passed off as a work completed by Miss Clark and joins Miss Clark to the offence. Miss Clark does not recall signing the painting. She states she has no recollection of any discussion or instructions about the painting. She further states she' did not recognise that signing a painting might have a different legal effect to signing other items.
She said had she known she would not have signed the painting. She states that her error was to fail to recognise the different character of this matter.
Miss Clark's explanation is, of course, based on her understanding of what took place, not. on independent recollection of the events. Her explanation is consistent with the statement of Mrs Bush that the painting was completed to keep a charity happy.
Despite the. intention to assist a charity, and the explanation that those involved did not recognise the effect of their actions, it is considered that those actions amount to forgery.
BY signing the painting Miss Clark, who had prior knowledge of the request for the painting, has created the false document with knowledge of the use to which it will be put. The discussion at the time the document was signed, as reported by Mrs Bush and Miss Leicester, appears to be evidence of this knowledge. It is therefore argued that knowledge of the falsity of the document and an intention that it should be passed off as genuine, were present at the point that the painting became a document.
The evidence establishes that Mrs Bush has then passed the painting on to SAFE as an original work completed by Helen Clark. That was what the organisers had requested and she took no action to dissuade Miss XXXX from that view when she advised her that the painting was on its way.
There was widespread media coverage including items on TV1 and TV3. Media commentary was quite specific about the alleged origin of the painting. Miss Clark states that she has no recollection of any media reports about this
M e is d s re ia
C matter.. She states that such reports would not normally have been brought to her attention by way of media summaries prepared by her staff at that time. Mrs Bush states that she had no knowledge of any media commentary prior to the auction. It is however considered unlikely that Miss Clark or her staff were unaware of this coverage. There appears to have been no action taken to set the The organiser's brochure promoting the auction states that all works are the original contributions of the individual personalities. The SAFE staff members involved in the promotion are adamant that they were given to understand that the work was completed by Miss Clark. The auctioneer also shared this view.
On the face of it, despite their assertions that they were trying to help a charity, there is evidence that Miss Clark and her staff member, Mrs Bush are liable for the offence of forgery.
6.1.2 Ponsonby Primary School Doodle .
The circumstances surrounding this transaction are less clear. If it is accepted that the document was completed in the fashion described by Mr McLean, it may still constitute a false document. To determine whether the offence of forgery has been completed, an examination of the requisite intent at the time the false document was made is required.
If the doodle is a false document it could be argued, based on the statement of Mr McLean, that Miss Clark had no knowledge of the purpose for which the document would be used. Without that knowledge it is difficult to argue any intention.
Contrasted against this view are Miss Clark's reported comments in the media which state that she had on five or six occasions had her staff help her complete works for charity, and that the Ponsonby Primary school doodle was one of these items.
Based on those reported comments it is possible to infer Miss Clark had prior knowledge of this request, and therefore ' knowledge of how the document would be used. Arguably Miss Clark has through these reported statements implied that the items for auction were sold as original works completed by the person signing them to raise funds for charity.
Mr McLean has stated that he told Mr Carter how the document was created. Mr Carter's statement, and the statement of his secretary Mr Sablyak, supports this assertion. They both claim that the recipient of the drawing was told how it was made. If the statements are indeed true then they would show a lack of intention to deceive.
Balanced against that is an absolute repudiation of these claims by Mr Money and Mrs Malcolm. They state they were-not advised of the true manner in .which the doodle was completed. There is direct conflict on this point of the evidence between Mr Money and Mr Carter.
Media coverage, which the evidence has established was noted by Mr McLean claimed Miss Clark completed the work. There do not appear to have been any steps taken to correct that impression.
It is clear on the evidence that the auction, organisers, the auctioneer and the purchasers were all unaware of the true authorship of the doodle until the April media controversy.
Whilst all these pieces of events help to determine intention, the critical point is whether the evidence establishes a requisite intention at the time the document was made.
Taking all of the circumstances into account it. is argued that there is difficulty establishing an intention for the document to be acted on as genuine at the time the document was made. It is unlikely, therefore, that the necessary ingredients of the offence of forgery in relation to this item can be established.
6.2 Section 266: Uttering a Forged Document
Everyone is liable who, knowing a document to be forged, a) Uses, deals with, or acts upon it as if it were genuine; or b) Causes any person to use, deal with or act upon it as if it were genuine.
In relation to the SAFE painting there would appear to be prima facie evidence to support a charge alleging Mrs Bush was liable for the crime of uttering. On the facts outlined above it seems clear that Mrs Bush caused SAFE, the auctioneer Mr Devereux and the purchaser Mr van Dijk to act on the forged document as if it were genuine.
In relation to the Ponsonby Primary School doodle, liability for uttering a forged document may arise if it were established that a forgery had been completed and that others were caused to act upon the forged document as if it were genuine.
As discussed above there is difficulty in establishing a crime, of forgery in relation to this item.
Even if forgery was established there are significant problems establishing individual liability given the explanations provided for the document's execution and the lack of independent corroborating evidence.
Mr McLean and/or Mr Carter could potentially be liable if they have failed to advise the recipients of the document of the manner in which it was created. Both assert that the correct advice was provided and are to some extent supported by Mr Sablyak.
Mr Money could be liable if he failed to advise the school how the drawing was prepared, after being so advised by Mr Carter. Mr Money absolutely refutes being so advised. His actions subsequent to receipt of the drawing, at the auction, and after this item was identified in the media, go some way to corroborating his assertion of these events. Some independent evidence, in relation to the timings of telephone calls is available in support of Mr Money's assertions.
Liability for each party comes down to a straight conflict on the events that cannot be conclusively resolved in favour of any one of the parties.
On that basis it is argued the facts surrounding the Ponsonby Primary School item disclose an insufficient basis to prefer a prosecution.
6.3 Section 229K Using a document with intent to defraud.
Everyone is liable who, with intent to defraud, uses any document for the purpose of obtaining, for himself or any other person; any privilege, benefit, pecuniary advantage or valuable consideration.
A central ingredient to a charge under this section is whether a painting or drawing is a "document" within the terms of this section. A signed painting has been held to be a document for the purposes of sections 264 to 279 of the Crimes Act 1961. The definition of a document in that part of the Act is specific to those sections.
It is not clear whether the same definition can be applied to Section 229A of the Act. It is suggested, using normally accepted definitions of what constitutes a document, that a painting or drawing is not a document for the purposes of that section. This view is supported by a number of relevant judgments.
There is therefore real doubt that a painting or a drawing is a document for the purposes of this section.
The other critical issue that must be determined to prove this offence is the intention to defraud. This intention is also central to a conspiracy to defraud and is discussed below. That discussion suggests there is insufficient evidence available to establish an intent to the requisite level.
6.4 Section 257 Conspiracy to Defraud
Everyone is liable... who conspires with any other person by deceit' or falsehood .. to defraud any person ... or to affect the public market price of merchandise or anything publicly sold, whether the deceit or falsehood ... would or would not amount to a false pretence as in hereinbefore defined.
The primary ingredient for any conspiracy is an agreement between two or more people to carry out some common purpose.
The acceptance of a painting or drawing, agreeing to affix a signature to the painting or drawing and knowing the purpose for which the painting or drawing is to be used may be sufficient to show that agreement.
Because the circumstances surrounding this point were quite different on each occasion, the two items will be considered separately in relation to this ingredient.
6.4.1. SAFE Painting
In respect of this item there is evidence pointing to prior knowledge of the original request by Miss Clark, albeit she appears to have declined it.
Miss Clark's staff member', Mrs Bush, describes the process by which the request for an original painting was made, and how that request was conveyed to Miss Clark. She describes how she, apparently acting on her own initiative after the request was declined, commissioned a painting for Miss Clark. She confirms asking Miss Clark to sign the painting and witnessing her affix a penned signature on the rear of the painting.
Miss Clark states that she has no recollection of these events. It is, however, difficult to see how Miss Clark could not have possessed the relevant knowledge about how the painting was to be used. It is considered that where that knowledge exists there must be an agreement.
It is therefore considered that Miss Clark has agreed, with others, to have the painting portrayed as. her own work despite her lack of independent recollection of these events.
6.4.2 Ponsonby Primary School Doodle.
Mr McLean states that he put the drawing he had completed for the Ponsonby Primary School in front of Miss Clark and asked her to sign it. He states that there was no discussion about the item between he and Miss Clark.
Miss Clark's subsequent reported comments in the media suggest that she was aware at that time that the item was going to be auctioned. The evidence is not clear whether Miss Clark, at the time of signing, knew how the work would be portrayed.
Mr McLean states that he made known to Mr Carter the means by which the item was produced and signed. Miss Clark has, on the face of it, signed an item completed by her secretary, who has in turn told the recipient how it was completed.
There is no evidence of any agreement in any subsequent activity associated with this document.
It is suggested these facts do not disclose any agreement for the purposes of section 257 of the Crimes Act 1961.
6.4.3 Intention to Defraud
If it is accepted that the facts disclose an agreement, then issues of intention to defraud need to be considered. This ingredient is only discussed in relation to the SAFE painting as it is considered that no agreement has been satisfactorily established in respect of the doodle.
it should be noted that an intention to defraud need not result in personal gain. In this instance any monetary gain accrued to the organisation auctioning the painting.
On an objective view of the facts it is suggested that all parties must have' been aware that attaching Miss Clark's signature to the work would increase the value of that work. It is also argued that those involved must have known that potential purchasers would be deceived into believing the work was completed by Miss Clark, and would therefore pay an inflated price for the item. Indeed it appears to have been the intention of Mrs Bush and Miss Clark that the work be passed off as Miss Clark's.
It can also be argued that the apparent absence of any rebuttal of what must have been widely known media reports describing the painting as Miss Clark's own work supports this interpretation of the facts.
Potentially this reaches the threshold of prima facie evidence necessary to establish a fraudulent intention.
Balancing this objective analysis of the facts, are the explanations given* by those involved. Interviews with Miss Clark's staff have not disclosed any stated intent to defraud. Their expressed primary intention has been to assist Miss Clark with her workload and her contribution to charities.
In comments attributed to Miss Clark in the media and reported statements in Parliament, Miss Clark has stated that her sole intention was to assist charities. She has said in her statement to Police that had she been aware there was any suggestion she was breaching any law she would not have acted as she did.
Police have spoken to those of Miss Clark's staff who were involved in the manufacture and subsequent distribution of the drawings or paintings. They acknowledge, with the benefit of hindsight, that their actions have deceived the beneficiaries and the potential purchasers of the donated art works. They state they were motivated by an excess of helpfulness rather than by any intention to defraud, and not to have realised the implications of their actions. This is to some degree supported by their stated incredulity at the price fetched by the painting. On balance those involved seem to have been indifferent to any possibility of fraud, if indeed they turned their' minds to the prospect at all.
It is considered that the evidence shows a carelessness or indifference, but does not show the deliberate intention and knowledge needed to prove an intention to defraud to the standard required for a criminal prosecution.
A similar intent is required for Section 229A. It is considered there is insufficient evidence to prove that intent for the purposes of sections 229A or 257 of the Crimes Act 1961.
6.5 Sections 116 and 117(d) Conspiring to Defeat Justice 1 Attempts to Defeat Justice
"Everyone is liable ... who conspires to obstruct, prevent, pervert or defeat the course of justice" (Section 116) "Everyone is liable ... who wilfully attempts in any other way to obstruct, prevent, pervert or defeat the course of justice" (Section 117 (d)) These two sections have been considered in relation to the actions of Mr Mitchell, Mr Hill and Mrs Caulfield.
They are all quite clear that they considered the painting, and the associated publicity, embarrassing to Miss Clark, and in Mr Mitchell's case, to the Labour Party.
Mr Mitchell and Mrs Caulfield acted in concert to determine if the painting was available for sale prior to auction. Mr Mitchell after purchasing the item gifted it to Miss Clark via Mrs Cauffield on 3 May 2002. There seems to be clear evidence of an intention to work together to recover the painting.
Following receipt of the painting, and advice from Miss Clark that she may do with it as she likes, Mrs Caulfield discussed the options with her husband, Mr Hill. They reached a joint. decision to dispose of the painting and jointly carried out that action on the evening of the 5 and the morning of 6th May 2002.
These activities all took place following media commentary suggesting an offence could have been committed by Miss Clark. However the actions predate the active Police investigation.
Mr Mitchell was contacted about his role in the purchase of the painting on 6 May 2002. The initial contact was through the auctioneers who told him of a Police investigation. Mr Mitchell contacted police himself in the afternoon of 6 May 2002. Mr Mitchell states that he tried to recover the painting from Mrs Caulfield at this point and was told he could not have it. Mrs Caufflield confirms that conversation and states that the painting was at that point already destroyed.
There is no independent evidence to suggest these events were completed in any other fashion. Some corroboration of the timings of these events is available through analysis of Mrs Cauffield's telephone accounts. It is clear from these, and Mrs Caulfield's comments, that there were a number of calls seeking advice once she became aware of the Police enquiry. These calls al! took place after the time she and her husband have said the canvas was destroyed.
It might be argued that these three could or should have known of the possibility of the Police investigation. Their assertion is that they were not aware and therefore did not take it into account, nor did they consider the legal implications of what they were doing. They appear to have been motivated by a desire to get the painting out of the possession or control of Mr van Dijk who they saw as generating negative publicity.
On that basis it is submitted that there is a lack of evidence to prove any intent to obstruct justice, whether individually or together, and therefore there is an insufficient basis to consider a prosecution pursuant to these sections.
6.6 Sections 71: Accessory after the Fact
The relevant portion of the section reads as follows: 'An accessory after the fact is one who, knowing any person to have been a party to the offence,... tampers with or actively suppresses any evidence against him, in order to enable him to ... avoid arrest or conviction" It might be argued that this. section could apply to the circumstances giving rise to the destruction of the painting. However the same lack of intent identified above is relevant when considering this section.
Whilst it can be argued that Mrs Caulfield, Mr Hill and Mr Mitchell should have been aware of the possibility that Miss Clark had committed an offence, that is some way short of knowing a person has committed a crime.
It seems clear on the evidence that all were motivated by the desire to get something they considered embarrassing to Miss Clark out of. the public arena.
It is therefore considered there is a lack of relevant intent to establish a sufficient basis on which to proceed with a prosecution under this section.
7 Prosecution and Public Interest
Having reached the view that there is sufficient basis to consider a prosecution against Miss Clark and Mrs Bush under section 264 of the Crimes Act 1961, it is necessary to consider whether a prosecution should follow. 'The decision as to whether or not to prosecute is one for Police having regard to the evidence. Consideration of any relevant public interest issues may be taken into account in reaching that decision.
On some occasions it will be clear that it is in the public interest to mount a prosecution. That argument cannot be put forward with any certainty in this case. The following factors are considered relevant: The actions disclosed by the enquiry indicate that this offence of forgery is at the lower end of the scale and in circumstances that show a desire to assist a charity, rather than any motivation for personal gain on the part of the participants. In the context of a charity auction, the true value of the item is often less important than the contribution to charity.
While good intentions do not necessarily diminish the potential liability of those involved, such intentions are factors to be considered in reaching any decision to prosecute. It is considered these circumstances disclose imprudent behaviour rather than overt criminal conduct on the part of Mrs Bush and Miss Clark. Both are adamant that they had no idea they were' breaching the law.
* Ignorance of the law is not an excuse for criminal behaviour. The stated lack of knowledge by Miss.
Clark and Mrs Bush may, however, go some way towards mitigating the issue of intent in relation to forgery.
* Those directly affected by the actions of Miss Clark and Mrs Bush do not wish to make any complaint to Police, nor do they wish to be involved in any prosecution.
+ Miss Clark has paid reparation to the purchaser to recompense the loss
* Any deterrent effect required has been accomplished through the media coverage of these events. It is considered extremely unlikely that Miss Clark or any other public figure will repeat these sort of actions.
* If the matter went to trial and it was found that the ingredients of the offence were met, there is a real prospect that a Court would discharge Miss Clark and Mrs Bush without conviction.
+ Given the factors outlined above, a decision to prosecute on these circumstances may well be seen as unnecessary. It is arguable that in similar circumstances, involving someone other than the Prime Minister,. Police would be likely to issue a warning or take no further action.
The fact that one of the alleged offenders is the Prime Minister does not, of course, mean that Miss Clark is entitled to be. treated in a more lenient way than any other person would be treated. In most circumstances, those in public office are required to meet higher standards.
It is considered however that a conviction, or a finding by a Court that the ingredients of the offence had been met, may have an impact that is disproportionate to the seriousness of the conduct at issue or the personal culpability of the parties involved.
The combination of these factors may mitigate against prosecution and in favour of an alternative outcome for those who have been identified as having some culpability in this matter.
8 Additional Enquiry
Further enquiry could be completed to identify other works completed by Miss Clark. Any such enquiry would be difficult and time consuming, particularly as no other complaints have been received. In the absence of any complaint it is difficult to see any benefit in further investigation.
It is also. unlikely that any such enquiry would establish circumstances that were markedly different from the issues discussed in this case. A similar conclusion is therefore likely to be reached.
It may also be possible to gather additional evidence on the facts under examination. Should a decision to prosecute be taken those enquiries can be completed at that point. They appear to add little to the current discussion on culpability.
Further Police enquiry at this point is therefore considered unnecessary.
9.1.1 The purpose of this enquiry was to establish whether or not there is prima facie evidence, based on the facts, that a criminal offence had been committed.
Analysis of the possible offences has eliminated two of the items under investigation, the Moa drawing and the doodle, from further consideration. Conclusions regarding the SAFE painting are outlined below.
9.1.2 For the reasons discussed in the analysis section it is submitted that there is insufficient evidence to support a prosecution in respect of section 229A of the Crimes Act 1961. It is debatable whether a painting is a document for the purposes of this section and it is argued there is insufficient evidence of intent to defraud.
9.1.3 With regard to a conspiracy to defraud, whilst it is considered there is evidence of an agreement and that the sellers and buyers alike have been deceived, it is submitted that-the facts fail to disclose an intention to defraud at a level sufficient to warrant prosecution.. Without the necessary intent the circumstances do not meet the evidential standard required to support a decision to prefer a charge under this section. It is therefore considered that there is insufficient evidence to establish a prima facie case pursuant to section 257 of the Crimes Act 1961.
9.1.4 The circumstances do not disclose sufficient evidence to establish the necessary intent to support a prosecution for crimes against justice or as an accessory after the fact.
9.1.5 The situation with regard to forgery is more complex due to the various views on the law.
Offering legal advice has been received regarding whether or not the painting is a false document. The definition is central to any decision regarding a prosecution for offences under this section.
On balance the argument that the painting is a false document is more persuasive, particularly when it is considered what is commonly understood by a signature on a painting. There is also evidence to show knowledge of the document's falsity, and an intention that it should be acted on as genuine.
It is submitted that there is sufficient prima facie evidence to consider charges of forgery pursuant to section 264 of the Crimes Act 1961 against Miss Clark and Mrs Bush.
9.1.6 It follows that if a forged document was created liability may attach to any subsequent activity involving that document. On the evidence of Mrs Bush' subsequent activity involving the painting, there appears to be sufficient prima facie evidence to consider charges pursuant to section 266 of the Crimes Act 1961,
9.1.7 Police have a discretion whether or not to proceed with prosecution. In this case it is suggested that there are relevant factors that mitigate against a prosecution. It is considered that the actions 'identified through the enquiry can be adequately dealt with by other means.
9.1.8 Further investigation could be completed to identify the other works apparently executed by Miss Clark. No complaint has been received about these items. The issues are likely to be the same as those discussed in this report with a likely similar outcome.
It is therefore recommended that this file be referred to the Commissioner for him to: Note the conclusion reached that there is sufficient evidence to establish a prima facie case of forgery. against Miss Clark and Mrs Bush in relation to the painting completed for SAFE; Note the conclusion reached that there is sufficient evidence to establish a prima facie case of uttering a forged document against Mrs Bush in relation to the painting completed for SAFE; Note that there is insufficient evidence to establish a prima facie case. in respect of any other offence; Note the public interest issues relevant to this enquiry in reaching any decision regarding prosecution., Note that further investigation of these issues is unlikely to lead to any other conclusion Refer this file and these recommendations to the Solicitor General for advice on the law relevant to these issues; Determine, subject to the Solicitor Generals advice, whether a prosecution in relation to the crime of forgery will be mounted.
The file is referred for your consideration and forwarding to the Commissioner.
Malc m~ Burges llc Iv Sup Detective Superintendent: Southern
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