Prakash v Reginam [1987] FijiLawRp 11; [1987] 33 FLR 68 (25 September 1987)

[1987] 33 FLR 68

COURT OF APPEAL OF FIJI

Criminal Jurisdiction

SURENDRA PRAKASH

v

REGINAM

Roper, J. A, Mishra, J. A, O'Regan, J. A

Criminal Law – Forgery and uttering charges – necessity for directions as to the use of evidence against one who aids and abets - clear direction on corroboration lacking - direction on identification needed but not given - convictions "unsafe" - new trial ordered.

Hearing: 21 September 1987
Judgment: 25 September 1987

D. V. Fatiaki for Appellant
K. Taylor for Respondent

Surendra Prakash appealed against conviction and sentence on a charge of forging American $100 banknotes and four of uttering such notes. The appellant was sentenced to 5 and 12 years imprisonment respectively on the charges, to be served concurrently.

currently.

There was one charge of Forgery and four of Uttering.

The case for the prosecution had been that appellant was party to forgery in that he counselled and procured two directors of Budget Printers Ltd. of Lautoka, Surendra Nath (Nath) and Bal Krishna (Krishna) to forge some hundreds of U.S. $100 bank notes by an offset printing process and thereafter uttered or was party to uttering of the notes or some of them at various resort Hotels.

The Court was able to reduce the stated grounds of appeal to three, i.e. concerned with corroboration identification and parties to the alleged uttering.

The principal evidence against appellant on the charge of forgery was that of Nath and Krishna who had pleaded guilty and had been sentenced on that charge prior to giving evidence for the prosecution. This evidence was of appellant coming to them with two genuine notes and asking them to produce copies which they did, then handed the forged copies to the appellant. These two being accomplices, appropriate direction was required of the trial Judge. The direction to the Assessors which apparently was to refer to corroboration was set out of the Court of Appeal-

"You have heard what Samuel Surendra Nath said about his conversations with the accused. You heard him say the accused promised to pay $10,000 for the job, how when he was pressed for payment the accused said he was waiting for the ship Oriana because he was sending the notes abroad by someone on the Oriana and was expecting money and he couldn't pay till he got money. Then you heard what Samuel Surendra Nath said about the cheque for $5,000, that he wanted something to show the company from whom he was buying a car, and how in pressing the accused for money he agreed to take a post dated cheque, which was to be cashed when the accused got the money he expected.

Your will note that we only have Samuel Surendra Nath's account of this, although you have also seen the cheque and the cheque stub; the accused himself has said nothing about the cheque.

Well does this evidence and the evidence as a whole leave you in any reasonable doubt that the whole purpose behind the forgery was to defraud? And does not the existence of the cheque and cheque stub as described by Samuel Surendra Nath afford some corroboration of his evidence?

And then again if you accept the evidence I will come to in a moment, that within a short time after getting the bundle of notes the accused was seen cashing them, or even in the company of someone who was cashing them in various hotels and bars, is this not strong evidence not only that the whole intention of the exercise was to defraud, but evidence to corroborate Samuel Surendra Nath's and Bal Krishna's evidence of forging the notes for the accused, and of delivering them to the accused?"

Their Honours found these faults in it. The trial Judge did not define what corroboration meant. It was the trial Judge's duty to point to evidence capable of being corroboration than the Assessors' task whether it was in fact corroboration; yet the whole matter was by rhetorical questions left to them to decide if it was corroboration. The evidence of the cheque was not capable of being regarded as corroboration for the evidence of Nath. It did not by itself, confirm in a material way that forgery had been committed or that appellant committed it i.e. in the way alleged.

The evidence that appellant was in company of someone cashing the notes could not be evidence of forgery; nor was there evidence that the notes so uttered were those forged by Nath and Krishna. The latter were not asked to identify any of the notes exhibited. Nath said of the last two forged notes exhibited that they were not printed by his company. Two other notes he was shown were "very similar" to those he printed - he could not be definite. It seemed (from other evidence) that the latter two were not recovered from a hotel or its bank.
Held: The directions on corroboration as to forgery were inadequate and confusing. Corroboration was not defined. There was no direction as what evidence was capable of being corroboration. The evidence of the cheque supra was not capable of being corroboration.

As to the actual process of uttering charges there were two material complaints, inadequate directions as to parties lack of identification in respect of each hotel identification. The evidence was that on each hotel where cashing was achieved, appellant was present; sometimes he presented the notes, sometimes he stood by while another did so. There was no direction about the aiding, abetting, counselling or procuring on such occasions. What was required was how the one standing by could become criminally liable.

Appellant said to have been at the hotels was in the presence of those who identified him but a short time. A warning was not given as to identification, and relating to the facts of each specific case (R. v. Turnbull (1976) 3 All E.R. 549).

The conclusion was that it would be unsafe to allow the convictions for uttering to stand.

Appeals upheld.

New trial ordered on counts 1, 2, 3 and 6.

Cases referred to:

R v. Turnbull [1976] 3 All ER 549; (1976) 63 Cr App R 132.

ROPER, - J. A.

Judgment of the Court

This is an appeal against conviction and sentence on one charge of forging American $100 banknotes and four of uttering such notes. The Appellant was sentenced to 5 years imprisonment on the forgery charge and 2 years on each of the uttering charges, to be concurrent in themselves, but cumulative on the 5 years.