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Tapungun v Lau [2021] PGDC 4; DC5054 (12 January 2021)

DC 5054

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

NCC 542, 544-547of 2020
BETWEEN


DETECTIVE SERGEANT VINCENT TAPUNGUN


Informant


AND

GEORGE LAU
Defendant


Waigani: L Wawun-Kuvi


2021: 16, 23 December 2020, 12 January


CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE- COMMITTAL PROCEEDINGS- Duplicity- Charging of two offences-Hearing completed-What is the appropriate process- Particulars-Information not particularised-Hearing completed- What is the process- Essential legal elements not stated-What is the effect?


Papua New Guinea Cases Cited
State v Tulong [1994] PGNC 165; [1995] PNGLR 329


Overseas Cases cited
Higgins v Comans Acting Magistrate & DPP (Qld) [2005] 53 A Crim R 565
R v West London Justices ex parte Klahn [1979] 2 All ER 221
Edwards v Jones [1947] KB 659
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Miller v Johnson [1937] SAStRp 29; (1937) S.A.S.R. 323


References
Halsbury Statutes, 4 edition, vol 29
N.K.F O’neill and R.N Desailly ,The Criminal Jurisdiction of Magistrates in Papua New Guinea New South Wales Institute of Technology Sydney,1982


Legislations
Criminal Code Act, Chapter 262
District Court Act 1963


Counsel
For the Prosecution Sergeant John Wamugl and First Constable Sahellane Pius
Lawyer, for the Defendant Mr Silas Kaule

12 January 2021

RULING

L Wawun-Kuvi, Magistrate:

  1. This is the full reasoning for the decision handed down on 12 January 2021.
  2. The defendant is charged for:

Background

  1. This matter was initially before Her Worship Dessie Kaputin-Magaru. The Hand Up Brief (HUB) was completed and served on the defendant. The defence then filed an application to have the matter dismissed for abuse of process. Her Worship Kaputin-Magaru then dismissed the Application and called for submissions on sufficiency. It was during this stage that she became aware that she was named as a possible witness in the statement of one of the witnesses. She disqualified herself and transferred the matter.
  2. I received the matter and called for submissions on the sufficiency of the evidence. The Defence then made an application for an adjournment to file an amended submission. The prosecution had no objection and stated that whatever the course, they maintained their position in their initial submission.
  3. Submissions were made and the matter returned for ruling.
  4. The background is necessitated because at no stage, was there an objection or issue raised in relation to the apparent defects in the informations of forgery and uttering.

What is the significance of an information?

  1. In law, the information serves three distinct purposes:
    1. Jurisdiction: All the essential elements of the offence need to be pleaded in order for the Court to have jurisdiction.
    2. Notice: The defendant understands the allegation against him so that he can prepare his defence. A defective information deprives the defendant of this opportunity.
    3. Double Jeopardy: the offence has to be clearly drafted so that the defendant is able to plead double jeopardy if re prosecuted for the same offence.
  2. All of these purposes encapsulate the principle of fairness.
  3. An Information is not a mere piece of paper or a formality that a Magistrate just receives and endorses. Rather an information commences criminal proceedings, see s28 DCA. It is the information that gives a Magistrate the power or authority to act.
  4. Some may argue that it is not the role of a committal magistrate to peruse the information for defects or to do an enquiry into it but rather just to form an opinion on the evidence. Doherty J in State v Tulong[1] makes it clear that it is the duty of a Magistrate to peruse the information and ensure that it is in accordance with the law. She states:

“the District Court committal proceedings are not automatic. It is incumbent on a Magistrate to check that the law has been complied with and not to rubber stamp every information before it.”

  1. As Doherty, J states, our first duty is to the Constitution. The Constitution states that any person charged must know the nature of his charges and must be charged with an offence known to law.[2]
  2. Further, in R v West London Justices ex parte Klahn [1979] 2 All ER 221 the held that when determining an information, a Magistrate should consider:
    1. Whether the ingredients of an offence known to law are prima facie present;
    2. Whether the offence is ‘out of time’?
    3. Whether the Court has jurisdiction?
    4. Whether the informant has the necessary authority to prosecute?; and
    5. Whether in all the circumstances the allegation is vexatious?
  3. Some of these factors will of course appear during the course of the prosecution evidence.
  4. Where an element of the offence is missing or the offence is not known to law, then the Court has no power to proceed any further with the case because without a proper charge the Court has no authority[3].
  5. It is however not fatal to the prosecution where there is a defect in substance or form.[4]

What is the issue in relation to the information of Forgery?

  1. There are three separate issues that relate to the information.
    1. It is bad for duplicity as it contains more than one offence in a single count;
    2. It fails to provide sufficient particulars; and
    3. Essential elements of the offence are not stated.

What is the duplicity?

  1. The defendant is charged as follows:

“Did forge a document, unsigned information and incomplete summary of facts used to obtain stay order in judicial proceedings OS (JR) Number 720/2019 in Peter O’Neill’s Affidavit in Support Affidavit annexed marked ‘PO2’, thereby contravening section 462(1) of the Criminal Code Act, Chapter 262.”

  1. Section 462(1) provides that:

“A person who forges any document, writing or seal is guilty of an offence that, unless otherwise stated, is a crime.”

  1. The forging of one document is an offence of its own. An information and a statement of offence are separate documents.
  2. Section 29 of the District Court Act 1963 requires that the information charges for only one offence.
  3. The argument now may be that the information should be allowed to stand because no unfairness or uncertainty resulted. The Defendant here is a lawyer and is represented by a lawyer and knew that he was being charged for falsifying documents used to obtain a stay in the National Court for a warrant of arrest against his client. Further that there was no objection to the form of the information and that the Defendant adequately defended himself.
  4. Whilst this may be a convincing argument if raised, I cannot see how that would answer the position that the information fails to comply with section 29 of the District Court Act, which requires that the information be for one matter only.
  5. An additional position may also be that the information cannot be challenged for any defect in form.
  6. Section 32 of the District Court Act reads:

“No objection shall be taken or allowed to an information, or to a summons or warrant to apprehend a defendant issued on an information, for an alleged defect in the information in substance or in form, or for a variance between it and the evidence in support of the information, and any such variance may be amended by order of the Court at the hearing.”

  1. A similar provision is found in Halsbury, 4 edition, vol 29, paragraph 322:

“...No objection is allowed to any summons for any defect in substance or form. Any irregularity in the form or service of the form, or form of the execution of the warrant, is cured by the appearance of the party summoned or arrested, but this does not apply in the case of a defendant who appears purely for the purpose of taking objection to any irregularity.”

  1. This passage was derived from section 100 (1) of the Magistrates’ Court Act 1952 (UK).The Act has since been repealed but the provision was re-enacted in section 123 (1) of the Magistrates’ Courts Act 1980. It reads:

“(1) No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form....”

  1. This is the replica of section 32 of the District Court Act 1963.
  2. Section 123 in Halsbury’s Statutes vol 27 (277) states:

“The words of sub-s (1) above should not be read literally as meaning that there can be no attack on an information however fundamental the defect. It depends in every case whether, for instance, the variance between it and the evidence is such as to require an amendment, where there may be grave injustice to an accused unless the information is amended, then an amendment is called for....This section does not entitle the court to hear an information which, contrary to the rules, charges more than one offence at the same time. In such a case, if the prosecutor refuses to elect on which charge he wishes to proceed, so that the justices may amend the summons, the summons should be dismissed.” (Emphasis mine)

  1. In applying section 29 of the District Court Act in line with the express acknowledgement in the Halsbury’s Statues, it is concluded that section 32 does not apply when the charge is duplicitous. As such the information is not open to amendment.
  2. Returning to the present case, the information for forgery is prima facie duplicitous. The information charges a document, but then refers to two separate documents. As said above a police information is a completely different document to the statement of facts.

What then is the appropriate procedure?

  1. As stated in the Halbury Statue and also in the case of Edwards v Jones [1947] KB 659 the appropriate course is to require the prosecutor to elect the charge he wishes to proceed with.
  2. Edwards v Jones( supra) deals with the same provision as section 32 of the District Court Act 1963. The Court considered the effect of this provision on an information that was duplicitous charging both dangerous driving and careless driving and found that since the legislation specifies that an information shall be only for one offence, the prosecution must elect on which charge to proceed. The informant must then strike out the second charge and the defendant should be called to plead on the one remaining charge. The legislation providing for no objection to be made to a defect in an information in substance or form does not mean that a court can proceed on a duplicitous charge.[5]
  3. Although the procedure is simple, the question has proved to be considerably difficult. The difficulty arises because of the stage in which this issue has come to light. The matter is no longer at the hearing stage but has returned for ruling. I have given anxious consideration as to how I should now deal with the matter given that the information is duplicitous.
  4. I do not have wide powers and can only act within the relevant governing legislations.
  5. It is significant that the duplicity in the information was not challenged at any stage by the defendant who is legally represented and is a practicing lawyer and the principle of his own law firm. It is clear from the authorities referred to earlier in this judgement that an objection could have been taken to the information at any time and at that stage the prosecutor should have been asked to elect which offence to proceed with. That step was not taken because no one picked up the point.
  6. The defendant has not claimed any embarrassment or prejudice by the duplicity and has vigorously defended the charges as they stood.
  7. In my view, I could proceed hereon to strike out the matter and police would than appropriately consider the charges and re charge the defendant.
  8. This however is not possible considering the totality other aspects of the information, which I hereon address.

Does the charge provide the necessary particulars?

  1. No.
  2. As stated, the information other than being duplicitous fails to provide reasonable particulars.
  3. In my view, there are ten different or separate offences found under section 462 (1) in conjunction with section 460 (1) and 460 (3), the definition provision.
  4. Three offences relate to the forgery of documents:
    1. Altering the document by erasure, obliteration, removal or otherwise.
    2. Making an addition to the body of a document.
    3. Adding a false date, attestation or seal to the document.
  5. Three relate to the forgery of writings:
    1. Altering the writing by erasure, obliteration, removal or otherwise.
    2. Making an addition to the body of a writing.
    3. Adding a false date, attestation or seal to the writing.
  6. Four related to the forgery of seals:
    1. Makes a counterfeit seal or mark
    2. Makes an impression of a counterfeit seal knowing it to be counterfeit
    3. Makes a counterfeit representation of an impression of a genuine seal
    4. Makes without lawful authority the impression of a genuine seal.
  7. The present case relates to the forgery of a document. The charge does not specify which of the three offences the prosecution is relying on, that is, whether the defendant removed something from a genuine document, added something to the body of the document or added a false material to the document.
  8. It appears from the submissions by the defendant that he defended himself generally in that he committed no act of forgery. This however does not ease the burden of the prosecution to sufficiently state how the defendant committed the forgery.
  9. The proper process in such a circumstance is for the prosecution to furnish the particulars to the defendant. The High Court of Australia in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 held that a defendant is entitled to particulars that identify “the act, matter or thing” that is said to provide the foundation for the charge. This includes the details of the time, place and manner of the alleged offence.
  10. Johnson v Miller discussed sections 51, 56 and 181 and 183 of the South Australian Justices Act 1921-193. These are equivalent sections found under sections 29, 30, 32 and 33 of the District Court Act 1963. The only difference is found under section 182 is the option to dismiss where the information is not amended after being required to do so. The District Court Act is silent as to what is the process to be taken when particulars are not supplied when required and or when the information is not amended.
  11. The legislative basis for the Court requiring particulars is section 31 of the District Court Act. Amendment is authorised by section 33 of the District Court Act. However, the amendment is only where there is a variance between the information and the evidence.
  12. This requires that the prosecution must indicate to the Court facts or transactions which are subject to the charge. In this case no one identified the issue and the matter reached ruling.
  13. By that course, the question now is what is the consequence of not particularising this late in the matter?
  14. Whilst section 30 of the District Court Act, expressly provides that the description as given by the prosecution is sufficient in law, this as stated by the majority in Johnson v Miller , only relates to the nature of the offence and does not dispense with the necessity of providing particulars.[6]
  15. Here the Information states the day and time, but not the circumstances of the offence. It is especially essential in this case where the allegation is that there was a conspiracy to falsify documents. Had it not been for the allegations of conspiracy, the requirement for particulars may not have been vital to the prosecution case. The information would have to establish whether a material was added, removed or something false was added. This would then connect to the charge of conspiracy. Otherwise it would be unknown as to the involvement of the defendant in the making of the false document.
  16. There appears to be a latent ambiguity in the information. This would be cured by the prosecution making an amendment or providing particulars indicating either that the defendant conspired with another to add, remove or insert a false material.
  17. The existence of the ambiguity is the foundation of the defect. This is prejudicial to the defendant.
  18. If the prosecution case as stated is confined to the defendant only and not to a conspiracy with another person then the information may be regarded as giving sufficient particulars to meet the case. But the real claim of the prosecution is that the defendant conspired with a registry staff to obtain documents from the registry at its highest. As to whether the staff removed, added, put a false material, that is unknown.
  19. In my opinion, on the face of it, the prosecution cannot establish a case of forgery. To allow the prosecution to allege forgery in the general would be to allow the admission of one charge containing three separate offences, in breach of the rules and contrary to the law.
  20. In this case and as in Miller v Johnson, where the question is should the prosecution be required to submit particulars, Dixon J said at page 489

“he should be required to identify the transaction......For a defendant is entitled to be appraised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The Court hearing a complaint or information for an offence must have before it a means if identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.

  1. The question now would be, what is the appropriate course taking into consideration that the matter has already gone past submissions?
  2. The law is clear that the prosecution must provide the necessary particulars. But this case is peculiar.
  3. Although the District Court Act is silent on what happens in the event of failure to provide particulars or not amending an information, the Court has an implied power to protect its processes from abuse and to secure a fair hearing. This is the very basis of the Constitution affording protection to persons arrested and charged for criminal offences.
  4. The implied power must of course be exercised only where it is necessary to a Magistrate carrying out his or her statutory function.[7]In Higgins v Comans Acting Magistrate & DPP (Qld) [2005] 53 A Crim R 565, where similar provisions of the District Court Act were discussed, the Supreme Court ruled that implied powers of the Committal Court do not extend to staying of a committal. Implied powers do exist but only as they are necessary to facilitate the express function of the Committal Court, that is, whether or not there is sufficient evidence for a person to stand trial.
  5. Whilst a stay to the proceedings does not relate to the necessary statutory function, the decision to proceed to an examination of the evidence where there are no particulars provided, is.
  6. This approach is reinforced by, by Latham CJ in Miller v Johnson in his dissenting judgment and Murrary CJ in the Supreme Court Appeal in Miller v Johnson [1937] SAStRp 29; (1937) S.A.S.R. 323. Latham CJ was of the opinion that the Magistrate should have proceeded to hear the evidence and called upon the prosecutor to elect which charge he preferred and amended accordingly. The conviction or as in this case, the committal would be for one offence only.
  7. This is especially so considering the peculiar circumstances of this case where the evidence in the form of the Hand Up Brief has already been tender and submissions made. Miller and Johnson must also be distinguished in that parties alluded to the Magistrate their out of court communications regarding the furnishing of particulars. There was no evidence called when the Magistrate decided to dismiss upon the complainant’s refusal to particularise. As Dixon J, stated at page 492,

“If a strict course had been followed, the difficulty would have been disclosed in the course of the evidence and it would have been incumbent upon the magistrate...to call for particulars (sic)....But he was right in doing it as soon as the ambiguity and the embarrassment were fairly disclosed.”

  1. In determining the evidence, I find that an adjournment would not cure the ambiguity.
  2. There is no evidence demonstrating that the defendant either removed something, added something or added a false material to a genuine document.
  3. In this case, the highest the prosecution can go is that the documents were not the ones that were signed by the Magistrate. The evidence establishes that the arresting officer used a computer at the Court house to type the information and statement of facts. For the documents to be forged, the prosecution has to establish that the defendant with the aid of his co-conspirator added something, removed something or added something that was false. Just because it was not the one the Magistrate signed does not render the document false.
  4. In a committal, there has to be some evidence in which the Court may form an opinion. In this case, there is none.
  5. In all the information is not only duplicitous and ambiguous, the evidence as it stands, in my humble opinion is not sufficient.
  6. And apart from the above issues, on examination of the charge provision, it is clear that the information does not comply with section 30 of the District Court Act.
    1. Additional elements of the offence of forgery are found under section 460 (2) being that the defendant intended the document to be used as a genuine to the prejudice of a person or to mislead a person to do or omit to do an act.
    2. The information is fatally flawed.

What then is the final recourse?

  1. In considering all three issues, that is, for being bad for duplicity, bad for ambiguity and for failure to disclose essential legal elements, combined with the consequence that the evidence is insufficient, the charge is dismissed.

What is the issue with the charge of uttering?

  1. The information charges:

Knowingly and fraudulently uttered a false document namely, unsigned police court information and incomplete summary of facts with intent that some person whether a particular person or nor act upon the said document in the belief that it was genuine, thereby contravening section 463(1)(b) of the Criminal Code Act, Chapter 262.

  1. As discussed above the charge is bad for duplicity and ambiguity.
  2. Whilst the evidence establishes that the defendant tendered into court documents that is said to be false, the evidence does not establish how the documents are false. The evidence at its highest establishes that the documents in the form they were existed in a computer at the Court House. Just because it was not the documents signed by the Magistrate does not mean that they are false. For it to be false, evidence must establish that the defendant conspired and had removed some material, added some material or inserted false material. There is no evidence of such.
  3. The information is dismissed.

Conspiracy

  1. The defendant is charged:

“Did conspire with another person namely Christina Moiyang with intent to defraud police informant S/C Kila Tali by relying on false and uttered incomplete documents to wit, unsigned court information, incomplete statement of facts and unsigned warrant of arrest to obtain National Court interim stay order, thereby contravening section 407 (1)(b) Criminal Code Act, Chapter 262.”

  1. Conspiracy to defraud involves an agreement by fraudulent means to inflict economic loss on a person or deprive him of an advantage, or to cause a public official to act contrary to his duty.
  2. I take judicial notice from Court records that one Christine Moiyang was charged for perverting the course of justice and abuse of office. Both charges were later withdrawn by the Prosecution.
  3. There are no reasons as to the decision to withdraw, reasons not required as it is the sole discretion of the prosecution, however, it does beg the question as to why police would withdraw charges against the principal co-conspirator and yet pursue conspiracy charges against this defendant.
  4. In any event the intent of the conspiracy as can be seen from the information and the evidence presented by the prosecution, is for the parties to rely on false documents to obtain a stay on the warrant of arrest against the defendant’s client namely Peter O’Neil.
  5. The evidence does not support the charge of conspiracy to defraud. It is apparent that the prosecution relied on the wrong conspiracy provision. The conspiracy as it relates to committing offences other than fraud are found under section 515, 516 or 517 of the Criminal Code Act.
  6. A latent ambiguity was created when the prosecution decided to peruse the charge under section 407 (1) of the Code rather than one of the more suitable provisions alluded to above. There is no correlation between the charge and the evidence.
  7. There is therefore little to no evidence to support the charge and the information is dismissed.

Commissioning a False Document.

  1. The defendant is charged:

Being a commissioner of oaths did sign on Peter O’Neil’s affidavit marked as annexure “POI” dated 15 October 2019 to your knowledge was false in material particular, thereby contravening section 19 (1) of the Oaths, Affirmation and Declaration Act.

  1. This charge relates to the commissioning of an annexure referred to as ‘PO1’. This is the warrant of arrest. There is no annexure of this document in the HUB. Furthermore, police have withdrawn the charges relating to the warrant of arrest.
  2. There is therefore insufficient evidence.

Commissioning a False Document.

  1. The defendant is charged:

“Being a commissioner of oaths did sign on Peter O’Neil’s affidavit marked as annexure “PO2” dated 15 October 2019 to your knowledge was false in material particular, thereby contravening section 19 (1) of the Oaths , Affirmation and Declaration Act.”

  1. ‘PO2’ is the information. The exhibit does show that the information is not signed by both the arresting officer and the Magistrate. Without the signatures the document has no legal authority. The Defendant is a lawyer and a senior member of the bar and not to say a non legal commissioner of oath. It can be reasonably inferred that he knew very well that PO2 was not a true copy of the information.
  2. This charge is distinguished with the charge of forgery and uttering in the present case. Whist in the later, there is no evidence to show that a false document was created, here the allegation is that the defendant knew that the document was not the original or true copy of the original but went ahead and commissioned it.
  3. There is therefore sufficient evidence for the defendant to stand trial. I therefore proceed to section 96.
  4. The matter shall be adjourned to give time for the defendant to consider his options.
  5. The matter is adjourned to 26 January 2021.

Order(s)

  1. The Orders of the Court are as follows:

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, Young & Williams


[1] [1994] PGNC 165; [1995] PNGLR 329
[2] Section 37 of the Constitution
[3] See Criminal Jurisdiction of Magistrates in Papua New Guinea at paragraph 2.7
[4] See Hedberg v Woodhall [1913] HCA 31 and Johnson v Miller [1937] HCA 467
[5] See Criminal Practice of Magistrates in Papua New Guinea paragraph 1.21 and also Johnson v Miller [1937] HCA 467
[6] Reliance for this proposition was derived from Smith v Moody [1903] 1 K.B at page 61, 63
[7] Higgins v Comans Acting Magistrate & DPP (Qld) [2005] 53 A Crim R 565

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