Republic v Teurubaba [2014] KIHC 33; Criminal Case 16 of 2012 (6 August 2014)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 16 OF 2012

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

TEIA TEURUBABA
TINI TEIA
ACCUSED

Before: The Hon Mr Justice Vincent Zehurikize

1, 25 & 31 July 2014 & 6 August 2014

Ms Pauline Beiatau for Prosecutor
Mr Taoing Taoaba for 1st Accused
Mr Teetua Tewera for 2nd Accused

JUDGMENT

Zehurikize, J: The accused persons namely Teia Teurubaba and Tini Teia who are husband and wife are charged with the following offences:

In Count I they are charged with causing money to be paid on forged documents contrary to s.338(a) of the Penal Code. It is alleged that on 6 April 2011 South Tarawa in the Republic of Kiribati with intent to defraud the accused demanded or endeavoured to obtain any money under, upon or by virtue of any forged instrument known as release of pledge.

In Count 2 they are charged with forgery contrary to s.329(a) of the Penal Code.

It is alleged that on or about 1st April 2011, South Tarawa in the Republic of Kiribati with intent to defraud they forged a valuable security known as release of pledge letter by signing it purporting to be signed by T. Tanibwarata.

In Count 3, the accused are charged with Uttering contrary to s.336(1) of the Penal Code.

It is alleged that the accused persons on 6 April 2011, South Tarawa in the Republic of Kiribati knowingly and with intent to defraud uttered any forged document known as release of pledge letter.

Lastly in Count 4 they are charged with False Pretence contrary to s.301 of the Penal Code.

It is alleged that both accused persons on 6 April 2011 at Bairiki, South Tarawa in the Republic of Kiribati, by false pretence, with intent to defraud, caused or procured any money to be paid to themselves for the use and benefit of themselves.

Both accused having denied all the offences the case went into full hearing.

In a bid to prove its case the prosecution examined 10 witnesses. In their defence A1 gave evidence on oath while A2 elected to make unsworn statement. In addition A1 called one witness.

The case for the prosecution briefly is that both accused persons on 1 April 2011 forged a document known as release of pledge form Exhibit P1 by making it appear it had been signed by one T. Tanibwarata when not. That on 6 April 2011 they went to Kiribati Provident Fund (KPF) office in Bairiki and gave it to one Borarau (PW5) so that A1's KPF proceeds could be paid to him on the understanding that his loan with Kiribati Housing Corporation (KHC) had been cleared. That unfortunately the fraud was discovered before the money could be paid to the accused persons. The discovery led to the suspension of A2 from her work with KHC. In a bid to save her job A1 on the 19th May 2011 wrote to the Lending Manager, Board and CEO of the KHC admitting to have written the name of T. Tanibwarata on the letter.

In his defence A1 admitted having collected the letter (exhibit P1), upon his application, from KHC, but claimed he was so drunk that he cannot recollect the person who gave it to him over the counter.

It was his case that since his loan had been transferred to his wife A2, he no longer had any loan with KHC. On the other hand the gist of A2's defence is that she did not forge or participate in the alleged forgery of the pledge release form (exhibit P1). That she only followed her husband to KPF for fear that if he got the money without her, he would most likely spend it on drinking.

At the trial Ms Beiatau appeared for the Republic, while Ms Taoaba represented the first accused person and Mr Tewera was for the second accused person.

At the conclusion of the hearing all the said Counsel filed written submissions in support of their respective client's case.

In disposing of this case I will begin with the second count of forgery because I believe all the other offences stem from it. According to the amended charge sheet dated and filed on 22 February 2013 and on which this Court proceeded, the law cited is section 329(a) of the Penal Code for the offence of forgery. But s.329(a) is non existent. It is nowhere in the Penal Code, at least with a copy in my possession. The correct section is s.329(2)(a) of the Penal Code which was cited in the original charge sheet dated and filed on 28 March 2012. I believe the above error is a slip of pen and it did not occasion any miscarriage of justice.

The particulars of offence in Count 2 for the offence of forgery are that the accused on or about 1st April 2011 in South Tarawa with intent to defraud, forged a valuable security known as release of pledge letter by signing it purporting to be signed by T. Tanibwarata.

Forgery is defined under s.326(1) of the Penal Code as the making of a false document in order that it may be used as genuine. One can say that a forged document is that which tells lies about itself. It purports to be what it is not.

The other element to consider is whether there is intention to defraud or deceive. Intention is a mental element and therefore can only be inferred from the facts of the case as a whole.

In the instant case the prosecution led evidence to the effect that T. Tanibwarata did not sign the Release of Pledge form on two grounds. The first assertion is that she was a temporary employee at KHC and as such not authorised to sign such a document. It is the reason why it was questioned and the fraud discovered.

The second reason is that by 1 April 2011 the said T. Tanibwarata had already stopped working at the Corporation. Her temporary employment ended on 30 March 2011.

It was the prosecution case that the person who could have signed the document in issue is A2, the wife of A1, who was employed by KHC and had access to the document (exhibit P1). The prosecution did not call any expert evidence like a handwriting expert to confirm as to who actually wrote the name of T. Tanibwarata on the Release of Pledge Form (exhibit P1). But nevertheless in the absence of a handwriting expert there is sufficient evidence to prove that it is not T. Tanibwarata who signed or wrote her name on the document.

First of all I do believe that she was a temporary worker and that by 1 April 2011 she had already finished her short contract and could not have been at the office when A1 went there to collect the document as he claims. Secondly the said T. Tanibwarata gave evidence as PW1 and denied ever writing her name on the document. She was not shaken in cross examination. She was a straight forward witness and I believe her evidence.

Lastly and quite interestingly A1 confessed having forged the document in his letter of 19 May 2011 (exhibit P3). This was a letter voluntarily written by him on his own volition. He was not coerced nor influenced by anybody. It must have been a surprise to anybody who got that letter. He genuinely confessed his crime in a bid to save his wife's job. A1's subsequent attempts to impress it on everyone including Court that in that letter he had told a lie against himself is merely a senseless pack of lies from an unsophisticated fraudster.

I find that the document (exhibit P1) is a forged document since it purports to have been written by T. Tanibwarata when not. It is a false document which was made to be used as a genuine Release of Pledge Form. It was intended to defraud or deceive the KPF into releasing funds to A1 when actually KHC had not issued such clearance.

The next question is whether it is the accused persons who forged it. As already indicated there is no expert evidence. But from the evidence as a whole it was forged by A1 or some other person with his connivance and as such even if it cannot be said for certain that A1 wrote the impugned document he would still be regarded as a principal offender under s.22 of the Penal Code. His participation in the forgery was proved beyond reasonable doubt.

For the above reasons I find A1 guilty of Forgery contrary to section 329(2)(a) of the Penal Code and convict him accordingly.

In absence of a handwriting expert it remains mere suspicion that A2 being the wife of A1 and at the material time working at KHC must have participated in this forgery. But suspicion alone, however high it might be, is not sufficient evidence on which a conviction can be based. It is highly possible that A2 facilitated A1 in forging the document. But it is also possible another person or A1 himself, despite his drunken state as he claims, could have forged the document without A2's knowledge or connivance.

For the above reasons I find that the participation of A2 in this offence was not proved beyond reasonable doubt. Consequently I find her not guilty and acquit her of the offence.

I will now move to consider the offence in Count 1. It is the offence of causing money to be paid on forged document. The forged document is the release of pledge form (exhibit P1). It is alleged that with intent to defraud the accuseds demanded or endeavoured to obtain money using the forged document. This was on 6 April 2011.

I have already found that exhibit P1 is a forged document. The evidence for the prosecution is that on 6 April 2011 both accused presented the document to KPF in a bid to get the funds due to A1. But that by this time the forgery had been discovered and so no payment was made.

It is not in dispute that the accused persons went to KPF on 6 April 2011 to withdraw the money. In his defence A1 admitted having gone to KPF to get his money. A2 went with him because she did not want him to get the money in her absence and squander it in drinking alcohol.

From the evidence on record it is clear to me that A1 did demand or endeavoured to obtain the money from KPF using a forged document. By that very fact intention to defraud was established. He knew the release of pledge form he was brandishing was a forgery which he himself was guilty of.

Consequently I find that the prosecution has proved beyond reasonable doubt that A1 with intent to defraud, demanded and endeavoured to obtain money using a forged document knowing the same to be forged.

As regards A2 I find that by 6 April 2011 she knew or ought to have known that the document A1 was going to present to KPF was a forgery. I do believe that members of staff on temporary terms like PW1 were not allowed to sign or issue such important documents as the release of pledge form. A2 was a senior member of staff at KHC and knew or ought to have known that PW1 had no authority to sign exhibit P1. Further she knew or ought to have known that in any case PW1 by 1 April 2011 was no longer working as her contract had expired on 30 March 2011.

Further still PW6 one Turuine told the Court that mere transfer of the loan did not automatically release the pledge. A2 as a senior officer at KHC knew this very well. There was no way the transfer of a loan to another person could amount to the release of its security, which in this case was the KPF proceeds accruing to A1. She was an accomplice in the commission of this offence. Her evidence that she happened to be at home on 6 April 2011 when A1 planned to go to KPF to withdraw his money was an obvious lie. They planned to go together to withdraw the money. It is possible that she did not want her husband to get the money in her absence lest he could squander it in drinking.

But what is clear is that she was aware that A1 was in possession of exhibit P1 which was a forged document, but nevertheless went with him to the offices of KPF and both presented the document to Borarau Kiribasi (PW5). Consequently I find that the prosecution has also proved beyond reasonable doubt that A2 with intent to defraud participated in demanding or endeavouring to obtain money using a forged document, to wit the release of pledge letter, knowing the same to be forged.

This leads me to the offence of uttering a forged document in Count 3. The evidence on record clearly proves that both A1 and A2 on 6 April 2011 uttered a forged release of pledge form which they knew was forged with intent to defraud by getting money form KPF as if the loan with KHC had been cleared. According to the evidence of PW6 Turuine, the mere transfer of the loan to A2 did not release the security which was A1's funds at KPF. Both accused knew this state of affairs very well.

The evidence of the accused that the loan having been transferred to A2, A1 was free to withdraw his KPF proceeds was an obvious lie. It is only but common sense that what was transferred to A2 was an obligation to manage the loan but the loan had not been cleared and there was no way its security, which was the A1's KPF savings, could be released. Consequently I find that both accused participated in the commission of uttering a false document. The prosecution proved this offence against both accused persons beyond reasonable doubt.

In Count 4 both accused are charged with false pretence contrary to s.301(a) of the Penal Code. It is alleged that on 6 April 2011 by false pretence, with intent to defraud, caused or procured any money to be paid to themselves for the use or benefit of themselves. Ms Beiatau in her written submissions contended that the accused should be found guilty of the offence although evidence proves that the money was not paid to A1.

In a bid to fortify her argument Counsel relied on the case of R v Maytum-White (1957) 42 Cr Appeal p. 165. Although I was not given a copy of the above decision, Counsel quoted a portion of the judgment which appears to have summarised the facts of the case. My understanding of that case is that the accused gave a cheque drawn on William Deacons Bank, Old Brompton Road SW7 – which meant he was presenting that he was a customer of that Bank whereas not. For that reason the Court found that the indictment was proved.

But the reading of s.301(a) clearly shows that the money or chattel or valuable security must have been obtained or procured which was not the case in the instant case. I find that the prosecution failed to prove the offence against the accused in Count 4 and acquit them accordingly.

In the final result I find both accused guilty of causing money to be paid on forged documents contrary to s.338(a) of the Penal Code and of uttering false document contrary to s.336(1) of the Penal Code and convict them accordingly.

Further I find A1 guilty of forgery contrary to s.329(2)(a) of the Penal Code and convict him accordingly.

Both accused are not guilty of false pretence contrary to s.301(a) of the Penal Code and for that reason are acquitted of that offence.

Dated the day of September 2014

THE HON MR JUSTICE V ZEHURIKIZE
Judge