Queen v Henry [2011] CKHC 68; CR76.2011 (5 December 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
CRI-76, 77/11

THE QUEEN

V

RANGIUA TERENETI HENRY

Hearing: 5 December 2011

Counsel: N Manavaroa and C King for the Crown
N George and R Samuel for the Accused

Judgment: 5 December 2011

PRE-TRIAL RULING 1 OF THE HON JUSTICE GRICE
[ON APPLICATION FOR REDUCTION OF CHARGES]

[1] This is a pre-trial application by Mr George on behalf of the Accused Mr Henry in relation to having the two forgery charges reduced to one charge. Mr George says thate are two ctwo charges filed. The first is under CR-76/11, which is an allegation that the accused forged a document, namely an application form to import a firfor ammunition into the Cook Islands knowing it to was fals false, with intent that it may be acted on as genuine. The second charge relates to CR-77/11, which alleges that the accused forged a document, namely a support letter for a firearm application knowing it to be false, with intent it may be acted on as genuine.

[2] Those two documents are to be produced as exhibits by the Crown and have been provided to the Court and Mr George. They are two separate documents, each with what purports to be Mr Raita's signature. The Crown alleges this is in fact a forgery by the accused. The first one is the application for a permit, which has a signature at the base and is dated 1 January 2010.second is in the form form of a typed document and purports to be a letter which explains the number of issues referred to in the application, these are listed as:

"1. Docary experience with firearmrearms.

2. Do you own or have previously owned any other firearm?

3. Do you have common knowledge of Cook Island laws relating to firearms?

4. Please explain in more detail your reasons for importing your weapon/s."

[3] This letter of support states:

"1. I have used friend's firearms to shoot the animals around the plantation.

2. Not before.

3. Yes basically have sound knowledge.

4. Yes I am a pig farmer on this island and animals are destroying my crops and I need protection, hence the reason of purchasing one."

[4] The support letter is then signed, or purports to be signed, by Steven Raita of Muri, Ngatangtiia

[5] Therefore the documents which are alleged to be forged are two separate documents, albeit both in relation to an application to import a firearm.

[6] Mr George says that they are all part of one permit and it is only because of administrative constraints that they are actually two documents. Therefore says he is concerned with the actus reus and mens rea of the offence rather than the fact that they are two documents. He says there is only one offence, one application for permit and the mens rea is only in relation to that application for a permit. He says the accompanying document is merely part of the permit application.

[7] He relies on s 9(4) of the Crimes Act, which provides that no one is liable on conviction to be punished twice in respect of the same offence.

"Section 9(4) No one shall be liable oniction to be punished twice in respect of the same offence.ence."

[8] Mr George says s 9(4) prohibits a persom sufm suffering double jeopardy for the same offence. Because there are two charges here relating essentially to the same permit application, the accused is fadouble jeopardy if they both proceed. Counsel were unable tble to refer me to any relevant cases on this.

[9] Mr Manavaroa for the Crown responds by saying that s 9(4) talks about punnt. The. Therefore the issue is that if the accused is found guilty, the matter of sentencing will take into account the fact he has been convicted of two forgeries which relate to the same ma

[10] Mr Manavaroavaroa also points to s 286 (i) of thewhich definesfines forgery as being:

"[1] 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 genuwhether within the Cook Islk Islands or not, or that some person shall be induced by the belief that it is genuine, to do or refrain from doing anything, whether within the Cook Islands or not."

[11] The section then goes on to deal with the inclusion in the definition, of making any alterations, insertions or other additions and matters.

[12] Section 287(3) states forgery, is complete as soon as the document is made with such knowledge and intent as aforesaid, although it was not intended any particular person rely on it.

[13] Therefore Mr Manavaroa says the completion of two separate documents indicates two separate charges of forgery and this is not a matter of double jeopardy, but two separate offences being alleged.

[14] I have considered these arguments carefully.

[15] I am of the view that forgery is in relation to the making of the false document, knowing it to be false and, in this case, there are two separate documents, albeit they form part of the same transaction. There are therefore two separate documents that are alleged to have been forged and therefore two forgeries. I am satisfied that any issues in relation to the fact of it being one transaction can be dealt with at a later time, after conviction if necessary.

[16] I am, therefore, not of the view that the application should be granted. The application is declined and the matter will proceed with the two charges.

Grice J

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.