State v Tumu [2021] PGNC 526; N9378 (1 October 2021)

N9378

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 116 OF 2020

THE STATE

v

LYNETTE K TUMU

Waigani: Salika CJ
2021: 21^st & 25^th June, 1^st October

PRACTICE AND PROCEDURE – Criminal Law – Charges of Forgery – s.462 of Criminal Code Act (CCA) - Charge of uttering – s. 463 of Criminal Code Act – Issue on fact - Whether accused forged the State Lease and the Transfer Deed.

Cases Cited:
Papua New Guinea Cases

Biyang v Liri Haro [1981] PNGLR 28

Overseas Cases

Browne v Dunn (1893) Eng Court of Appeal

Counsel:

Ms H Roalakona, for the State
Mr L Aigilo, for the Accused

1^st October, 2021

1. SALIKA CJ: INTRODUCTION: The accused is charged with the following charges:
   

Count 1

Lynette Tumu of Aipus Village, Wabag, Enga Province stands charged that she between the 1^st day of March 2013 and the 30 day of April 2013 at Port Moresby in the National Capital District in Papua New Guinea forged a document purporting to be a genuine copy of the State Lease Title of Allotment 155 Section 51 (Konedobu) also known as Portion 2062.

Count 2

The said Lynette Tumu of Aipus Village, Wabag, Enga Province stands charged that she between 1^st day of March 2013 and the 30 day of April 2013 at Port Moresby in the National Capital District in Papua New Guinea forged a document purporting to be a genuine copy of the State Lease Title Transfer Document (Form 1/98) of Allotment 155 Section 51 (Konedobu) also known as Portion 2062 dated 9 April 2013.

Count 3

The said Lynette Tumu of Aipus Village, Wabag, Enga Province stands charged that she between the 1^st day of May 2013 and 30^th day of November 2016, knowingly and fraudulently uttered a false document purporting to be a genuine copy of the State Lease Title of Allotment 155 Section 51 (Konedobu) also known as Portion 2062.

2. The first two charges are brought under s. 462 (1) and (3) of the Criminal Code Act and the third count is brought under s. 463 of the same Criminal Code Act. She was arraigned on the charges and denied each of them. A trial ensued thereafter.
   

THE STATE’S ALLEGATIONS

3. The State alleges that on or about the 14 November 2016, eviction notices were served by the accused on occupants of Allotment 155, Section 51 (Konedobu) also known as Portion 2062. This portion of land had been previously occupied by the employees of Department of Civil Aviation (DCA) and were regarded as institutional houses.
   
4. The eviction notice was served by the accused Lynette Tumu, holding herself out as the Legal owner of the subject property.
   
5. This eviction notice came to the attention of the National Housing Corporation (NHC) who at the time had title to the subject land and because a complaint was registered by one of the persons who was served the eviction notice by Lynette Tumu to confirm that she was indeed the owner of the subject property. Investigations were conducted with the Department of Lands and National Housing Corporation where it was discovered that Lynette Tumu was not the owner of the subject property.
   
6. The State Lease the accused claimed was her evidence of ownership of the subject land, was not supported by any valid contract of sale and a valid State Lease Title.
   
7. The Transfer Document (Form 1/98) the accused relied on was not the standard form for transfers used by the National Housing Corporation.
   
8. The Department of Lands and the NHC had no records of any transaction or transfers done on Portion 2062 to the accused.
   
9. The State alleges that the accused forged the copy of the State Lease Title of the Portion 2062 and the Land Transfer Form 1/98, and uttered these documents thereby contravening Section 462 (1) (3) (f) and s. 463 of the Criminal Code Act.
   

FACTS NOT DISPUTED

10. The accused is a self-employed woman, who sells clothes from her second hand business.
    
11. The accused is not the legally adopted child to the sitting tenant of the property the late Mr Meki Kalomendi and Patricia Kalomendi.
    
12. The accused is a caretaker who lived with the Kalomendi family and helped to take care of them and was considered a daughter in that context.
    
13. The State Lease acquired by the accused from NHC is a fake Title over the said portion of land. The accused admitted this fact through her lawyer when the no case submission was made. At the no case submission, counsel for the accused told the Court that the State Lease his client had was a fraud.
    

ISSUES

14. The issues at trial were:
    
    • (a) Whether the accused forged the State Lease.
      
    • (b) Whether the accused forged the Transfer Instrument.
      
    • (c) Whether the accused had knowingly and fraudulently uttered the false documents.
      

ONUS OF PROOF

15. The State has the burden to prove all the allegations it makes against the accused. In this case, the State must prove the three charges it has laid against the accused. The standard of proof is proof beyond reasonable doubt. The State must prove each element of the charges beyond reasonable doubt.
    
16. The requirement for the State to prove each element of the charge beyond reasonable doubt is consistent with the Constitutional direction that a person is innocent until proven guilty. Section 37 (4) (a) of the Constitution specifically says:
    

“37. Protection of the law.

(4) A person charged with an offence—

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge.”

17. The Supreme Court in SCR No. 2 of 1980; Re 522 A (5) Police Offences Act, Biyang v Liri Haro (1981) PNGLR 28 in addressing s.37 (4) of the Constitution said:
    

“The main thrust of the Constitution Section 37 (4) is to place upon the prosecutor the burden of proving the guilt of a person charged with an offence. By the underlying law that burden is to be discharged only when he proves beyond a reasonable doubt that the defendant is guilty; that is that the defendant is criminally responsible for the offence charged.”

“Upon adoption of the Common Law as part of our law the rule on the burden of proof as described above has been maintained and strictly applied in this jurisdiction. The standard at which the burden of proof is discharged is very high and the onus also rests with the prosecution to discharge it at that level.”

18. With respect, I adopt that position of the law as it relates to the required burden of proof and the protection of the law under s. 37 (4) of the Constitution by the Supreme Court. That, with respect is the correct statement of the law in my respectful opinion.
    

THE EVIDENCE

19. I will deal with the evidence of the State first. The following documentary evidence was tendered by consent:
    

No.	Document	Date	Exhibit
1.	Record of Interview conducted on 10 May 2019 between the Investigating Officer and the accused (Original English Version) (9 pages)	10/5/2019	A
2.	Statement of Malaki Amaiu (2 pages)	23/4/2019	B
3.	Statement of Kenneth Cooke (1 page)	15/2/17	C
4.	Statement of Derick Tangua (2 pages)	27/6/2019	D
5.	Statement of Steven Jangi	29/6/2019	E
6.	Copy of letter from Ministry of Civil Aviation to Malachi Amaiu, the Managing Director of BTI Defence Technologies (PNG) Ltd (2 pages)	21/9/2017	F
7.	Copy of letter from Weimin Boi to the Metropolitan Superintendent (1 page)	24/11/2016	G
8.	Copy of letter from Kenneth Cooke to Police Commissioner (1 Page)	15/2/2017	H
9.	Copy of letter dated 3 May 2017 from Paul Pera to Police Commander (2 pages).	3/5/2017	I
10.	Copy of State Lease (1 page)	10/3/2013	J
11.	Copy of Transfer of Title (1 page)	9/5/2013	K
12.	Copy of Certificate Authorizing Occupancy of Land (3 pages)	4/7/1989	L
13.	Copy of letter to Lynette Tumu (accused) from Benjamin Samson, Registrar of Titles, Office of the Registrar of Titles, Department of Lands & Physical Planning.	9/2/2018	M
14.	Copy of letter from Paul Pera, Principal Legal Officer, NHC, (2pages).	24/11/2016	N
15.	Copy of National Gazette No. G175 (3 pages)	5/7/2011	O
16.	Copy of letter from Sebastian Isu, Manager Development Control Section, NCD, Physical Planning Board (1 page)	7/2/2014	P
17.	Copy of letter to Chairman of NCD Physical Planning Board from David Dambali General Manager, NHC (1 page)	9/10/2013	Q
18.	Copy of Notice of Determination of an Application dated 3 September 2013 for Planning Permission from NCD Physical Planning Board to NHC (1 page)	3/10/2013	R
19.	Valuation Report by LJ Hooker (22 pages)	25/5/2016	S
20.	Copy of Statutory Declaration sworn on the 10 February 2012 by Patricia Kalomendi (1 page)	10/2/2012	T
21.	Copy of Eviction Notices to Existing Tenants (4 pages)	14/11/2016	U
22.	Copy of Photographs of Eviction (6 pages)		V

20. The following is the oral evidence of the State witnesses:
    

Benjamin Samson

This witness gave evidence in English and was at the material time the Registrar for Titles, Lands & Physical Planning Department and is currently the Secretary for Lands and Physical Planning. He verified the State Lease Title and gave evidence that the documents (Exhibits J & K) used by the accused is illegitimate and fraudulent. He further gave evidence of the process for the registration of Land and how the process was not used to register the transfer of the subject State Lease with Department of Lands.

In this case, the accused’s Title is dated 6 February 2013 and on record as per the Department of Lands records, the physical planning approval for the subdivision of this land (Portion 2062) took place in 2015. This means the Title came into existence before the approval of the subdivision was given. The lease must be accepted by the Minister or his delegate before the registration date which means in this case the Title was registered first, which is an improper process. That is the first reason the State Lease held by the accused is invalid.

The witness further said that the signature on the State Lease is not his signature, and is forged making the document false. This is the second reason the State Lease held by the accused is invalid.

The State submitted the State Lease Title the accused acquired before 2015 was illegitimate. He further maintained that at all material times he met the accused, he had advised her on numerous occasions that the Title she had in her possession was false and an invalid one.

Mr Samson was not discredited in cross-examination. In cross examination, the witness explained the process and procedures for acquiring State Leases and said that the procedures followed by the accused could not result in a valid title. The witness was a credible witness.

John Emena

This witness is the Properties Manager for National Capital District (NCD).

He gave evidence of his duties as NCD properties manager and said he did not sight any contract of sale from the accused as all contracts of sale are prepared by him and his team as they come through his department before any money is paid to the accounts section for the purchase price.

In addition, this witness said legal sitting tenants are invited to express interest to purchase the property first before the property is offered to others to buy.

In cross examination, the witness was queried on Portion 2062 being subdivided land and was put to him that he was not aware that it was subdivided. He maintained in his evidence that he did not sight any letter from the accused and that all dealings with such land in NCD all go through him before going through the conveyancing process at the NHC.

Geua Noho

The third witness, Geua Noho, is employed as a conveyancing officer with NHC. She has been employed with NHC for 25 years mainly dealing with all conveyancing matters of the NHC.

She gave evidence of the process on how instructions are received, which is from the NCD Manager of properties office to act upon. The file is checked for the Contract of Sale and transfer of Instruments. It is these documents that make up the file, which is sent to the Managing Director of NHC for approval.

The witness was further shown Exhibit K, the Transfer Instrument in this case where she indicated that the format of the Transfer of Instrument was different from the one mainly used by NHC. What the accused had, appeared a forged document.

She further said that she did not sight any conveyance form from the accused as all payments would have been processed in her division. In this case, there was no file created with respect to the said land and the file of the accused did not exist in her conveyance department.

Further during cross examination when queried on how she could have misplaced and not have sighted the accused file she maintained that she is the main officer in the conveyance section since she commenced employment and would have sighted such documents or created the file but in this case the file did not exist because the accused’s State Lease was not processed through her conveyancing department.

This witness is a credible witness. She is well versed and has an excellent knowledge of the processes involved and the documents that are required by her to complete the conveyancing process. I consider her to be a very credible witness.

Lucy Tovue

The fourth (4^th) witness is the senior revenue officer with NHC and has been so for 40 years. She is responsible for sale of NHC properties, government sale schemes and rental payment processes.

She gave evidence that she does not have any records of dealing with the accused. She said there was no record of the accused as a purchaser of any of NHC properties in the system as there was no evidence of a letter of offer to her for the witness to verify and check if payments were done accordingly. She said if there was an offer and acceptance letters present, payments would be done in accordance with the letters. The accused did not have such a letter or letters.

In cross examination she was challenged on her knowledge of the subdivided portion of land to which she said she did not have any knowledge of the subdivision of the land she said if there were payments made for the land there would have been a form of receipt issued for such payments by her at the NHC.

This witness was a credible witness and I have no reason to doubt her evidence.

Gregory Apunda

This was the last witness for the State who used to reside on Portion 2062 before the subdivision. His mother was a former employee of DCA and he resided with her in the home.

He gave evidence of the accused living around Konedobu area with neighbours, the Kalomendis’.

He said the accused used the fake State Lease Title, to evict him and others from the said land. He was shown Exhibit J and agreed that was the State Lease used to intimidate him into leaving the property after being told by the accused that she had bought the property.

He was a truthful witness. He did not try to make up facts. He was not aware of the sub-division exercise.

DEFENSE CASE

21. The defense case was and is that the accused was given the State Lease Title document and the Transfer Instrument by NHC and that she did not forge the State Lease and the Transfer Instrument and that she did not know the State Lease and the Transfer documents were fake. The defense called 5 witnesses who gave sworn evidence.
    

Lynette Tumu (Accused)

The accused gave evidence on her own behalf.

She conceded she was not a legally adopted child of Meki & Patricia Kalomendi. Meki Kalomendi being from Kavieng and Patricia being from Balimo, in Western Province and her from Wabag, Enga Province. She was considered more as a family friend.

The accused’s evidence focused on how a Task Force from NHC was established by former DCA employees to subdivide Portion 2062 and how she went into an agreement with the sitting tenants on the said land which in her evidence was taken as authority for her and others to proceed to have the State Lease Titles of the new allotments to be transferred to them.

The accused said she and other women residing on the land worked very hard to fund the subdivision of the land conducted by that Task Force as NHC lacked funds to have the land properly subdivided. She said she spent K120,000 of her own money on buying food, tools and certain items for the task force to help them complete the task.

The accused further said it was through this subdivision exercise that she and a group of other women went to see NCD Governor for assistance to pay outstanding land rates to have the land subdivided. This assistance was provided.

After that assistance, she met with the Managing Director for NHC John Dege, Gabriel Gore, the Principal Legal Officer of NHC at NHC Office where they gave her the State Lease Title that she used to evict the other sitting tenants on the said land.

Gilbert Kuimane

This witness gave sworn evidence that he was a former employee of DCA as a former Fire Fighter accredited in aviation training. His evidence is on the subdivision work on Portion 2062 and how he worked alongside the accused and other tenants on the land to subdivide the land. This was mainly in regards to fencing of the land.

In cross examination, witness maintained the fact that much of the subdivision costs and other bills were funded by the accused and that the accused was not an employee of DCA.

Micros Nea

This witness gave sworn evidence saying that he is employed as the projects officer in the NCD Governor’s office who provided advice on physical planning in the city.

He gave evidence of his encounter with the accused and other women, and how they approached him with some documents which contained a physical planning approval letter. This caught his interest and he further pushed to have the Governor contribute to settling such land rate bills on the land to permit subdivision of the land.

In cross-examination, the witness said the assistance given by the Governor for NCD was the first of its kind for the Governor to assist a group of underprivileged women, and he said he was very keen on assisting the accused and the other women.

Serah Mavoko

The witness gave evidence that she is an occupant of the subdivided land, section 153 and is a close neighbour to the accused and also one of the women who would follow the accused to NHC, the Governor’s Office and further assisted in tending to the needs of the Task Force from NHC.

The witness said no letters of offer were given to them by NHC to purchase the properties they were living on.

Susan Meki

This witness was the last witness to be called. She is the legal child of the sitting tenants and said the accused is considered a close relative to her family and that the accused has full knowledge of the property.

ANALYSES OF THE EVIDENCE

22. From the undisputed facts, it is safe for the Court to conclude that the State Lease the accused acquired or obtained and used to evict people like Gregory Apunda was an invalid State Lease. The accused admitted that fact. The accused admitted she was not an employee of the former Department of Civil Aviation or its successor the National Airports Corporation. She admitted she is not an offspring of a former employee Meki and Patricia Kalomendi who is from New Ireland Province and she is from Enga Province.
    
23. It is not disputed that the State Lease the accused relied on is dated 10 March 2013 (Exhibit J). The State Lease is for Allotment 155 Section 51, Granville in NCD containing 0.307 hectares, Allotment 155 Section 51 was previously part of Portion 2062 but subdivided into five separate allotments under one section. The allotments are 151, 152, 153, 154 and 155 under Section 51.
    
24. The Subdivision of Portion 2062 was completed between 2016 and 2017. The accused’s fake State Lease is dated 10 March 2013, before the allotments were created. Approval for the subdivision of Portion 2016 was given by the NCD Physical Planning Board on 3^rd September 2013.
    
25. All the evidence referred to above support the admission by the accused that the State Lease and the Transfer Instrument, the subject of Counts 1 and 2 of the indictment are forged documents.
    

WHAT IS FORGERY?

26. Simple English Wikipedia defines forgery as:
    

“Forgery is producing a fake document, signature, bank note or work of art in order to deceive. It is illegal, as it is fraud.”

The person who is charged with forgery must have made, altered, used or possessed a false document.

27. The Oxford Advanced Leaners Dictionary new 8^th Edition defines forge as:

“make an illegal copy of something in order to cheat people”.

Forgery as a noun is defined by the same dictionary as:

“the crime of copying money, documents etc. in order to cheat people.”

28. Section 462 (1) reads:
    
    462. FORGERY IN GENERAL: PUNISHMENT IN SPECIAL CASES.

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

Penalty: If no other punishment is provided–imprisonment for a term not exceeding three years.

Elements of the Charge Forgery in this Case.

29. The following are elements of the forgery charge:
    
    1. accused,
    2. on a date,
    100. at a place,
    4. forged,
    5. a document.
       
30. The State must prove each of the above elements of the charge beyond reasonable doubt.
    

Dealing with the elements of the Charge in this Case.

31. The accused concedes that the State Lease and the Transfer Instrument referred to in the charges are indeed false documents. She relies on s. 460 (2) of the Criminal Code in her defence. Section 460 (2) says:
    
    460. DEFINITION OF FORGERY.

(2) A person who makes a false document or writing, knowing it to be false, and with intent that it may in any way be used or acted on as genuine, whether in Papua New Guinea or elsewhere–

(a) to the prejudice of a person; or

(b) with intent that a person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Papua New Guinea or elsewhere,

is said to forge the document or writing.

32. While she concedes now that the documents, that is the State Lease and the Transfer Instrument, are false documents she says at the time the documents were given to her by the then Managing Director and the Legal Officer, she did not know the documents were false. She said she received the documents in good faith and with much gratitude, thinking at all times the documents were all good. She said she got told only in 2018 by Benjamin Samson that the State Lease and the Transfer Instrument she held were fake documents. With respect it cannot be contended by the State that she knew the documents to be false at the material time because the State did not adduce that evidence. There is no further evidence the Court can infer from.
    
33. The State Lease document bears signatures at the right top and bottom as Delegates (see Exhibit J). There is no suggestion that the accused forged that signature on the State Lease as the Delegate of the Minister for Lands, both at the top and bottom.
    
34. The State alleged that the accused forged the State Lease and the Transfer Instrument. The State however never adduced any evidence of her producing or making the false State Lease document nor did the State adduce any evidence of the accused producing or making the Transfer Instrument.
    

WHO FORGED THE SUBJECT STATE LEASE AND THE TRANSFER INSTRUMENT?

35. The State Lease dated 10 March 2013 and the transfer document of the State Lease is dated 9^th April 2013. The transfer document too is a forgery for the same reason that the accused now admits, it is a forgery. She blames the former Managing Director of NHC, Mr John Dege, and the Legal Officer for NHC for executing the State Lease and the transfer documents and for giving her the false documents.
    
36. She said she was asked to pay K30,000 for the State Lease and to have the Transfer Deed done by the former Managing Director of NHC, Mr John Dege.
    
37. The State Lease and the Transfer Deed possessed by the accused are not part of the records of the Department of Lands, the relevant Department responsible for the custody of State Leases. The NHC records do not show such transactions taking place. The relevant NHC officers, Geua Noho and Lucy Tovue, both said they never did any conveyancing for the accused and never received any K30,000.00 from the accused and that as such there are no records of her making those transactions with the NHC. If the accused did make a cash payment of K30,000.00 to the former Managing Director of NHC, Mr John Dege, and the Legal Officer, that to me, with respect, is a matter she can raise with the two officers and may be with the police.
    
38. The accused claimed to have the contract of sale signed by the former Managing Director for NHC and the NHC Legal Officer. The evidence of the Contract of Sale was never put to the State witnesses and under the rule in Browne v Dunn, that evidence is reduced in weight. The Contract of Sale was introduced by the Defence in its evidence through the accused.
    
39. The former Managing Director of the NHC and its Legal Officer who are said to have signed the Contract of Sale on behalf of the NHC were not called to support the accused’s story.
    
40. The defence counsel submitted that the State should have called the former Managing Director of NHC, John Dege, and the Legal Officer, Gabriel Gore, to give evidence on the transactions that took place in this case. While I accept that submission, I think by the same token, it was open to the defence to call them as her witnesses. The case is not specifically about the validity of the Contract of Sale document allegedly signed by the accused and John Dege and Gabriel Gore, rather it is specifically about the fraudulent State Lease and the Transfer Instrument.
    
41. The question then is who forged the State Lease dated 10 March 2013 and the Transfer Instrument dated 9 April 2013? The State contends the accused forged them. The accused says she did not. There is no direct evidence of the accused, in this case forging the two documents, I am therefore not satisfied beyond reasonable doubt that the accused forged the two documents. There is evidence from the accused that there were two other persons who might have forged the documents. Police did not follow up on her story and as a result the Court does not know who forged the documents. I therefore find her not guilty of Counts 1 and 2 of the indictment.
    
42. The remaining charge is in relation to knowingly and fraudulently uttering a false document purporting to be a genuine copy of the subject State Lease. It is not in dispute that the accused uttered the State Lease to the then Tenants of Allotment 155 Section 51. The evidence of the accused is that she did not know that the State Lease she had was a fabricated document until she was informed by Benjamin Samson in his letter to her.
    
43. It is not in dispute that the accused ever validly purchase the subject property. She said she paid K30,000 to the former Managing Director of NHC, John Dege, and the Legal Officer. She is said to have been verbally offered to purchase the property for K30,000 and she said she did pay cash of K30,000.00 to John Dege and Gabriel Gore. That mode of payment was definitely not in order and as such was illegal. The evidence of Lucy Tovue and Geua Noho are very relevant to this issue. Simply summarized, the process was not followed and the accused paid her K30,000 to the two men for nothing. As earlier alluded to the police investigation never followed up with the accused’s story. The real culprits are not before the Court. The accused would not have done this on her own. She may have been cheated with the payment of K30,000. This is a serious allegation and the police never followed this.
    
44. There is indeed no solid evidence that the accused knew of the fact that her State Lease was invalid and that similarly her Transfer Instrument was also invalid.
    
45. Section 463 (2) of the Criminal Code Act says:
    

“463. UTTERING FALSE DOCUMENTS AND COUNTERFEIT SEALS.

(1) ...

(2) A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.”

46. The elements of the charge are:
    
    • (i) on a date;
    • (ii) at a place;
    • (iii) a person;
    • (iv) knowingly and fraudulently;
    • (v) utters;
    • (vi) a false document.
      
47. The State must prove each of the above elements of the charge of uttering beyond reasonable doubt. Has the State proved each of the above elements stated above beyond reasonable doubt? The State has proved elements (i), (ii), (iii), (v) and (vi) beyond reasonable doubt, however, it has not proved element (iv) beyond reasonable doubt.
    
48. In relation to Count 3, I find her not guilty of that charge.
    
49. The net effect of my decision is that the accused is not guilty of the three Counts and is acquitted of the charges.
    
50. The State did not think through the evidence of the accused in her record of interview before laying the charges. The investigation of the case was substandard. Police Officers given the task of carrying out investigations must diligently carry out their investigations before coming to Court; otherwise, it is a waste of everybody’s time.
    
51. The formal orders of the Court are:
    
    1. Count 1 – Not Guilty.
    2. Count 2 – Not Guilty.
    100. Count 3 – Not Guilty.
    4. The accused is acquitted of the three charges.
    5. Bail is to be refunded to her.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Gibson Bon Lawyers: Lawyer for the Accused