State v Luberio [2024] PGNC 381; N11051 (24 October 2024)

N11051

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 311 OF 2023

THE STATE

V

LLOYD ANDRADE LUBERIO

Waigani: Berrigan J
2024: 5^th, 6^th, 20^th March and 24^th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – FORGERY AND UTTERING – Sections 462 and 463, Criminal Code - Whether accused forged and uttered a police clearance certificate - Not guilty.

Cases Cited

References Cited
Sections 7, 87, 459, 462, 463, 547, Criminal Code

Counsel
J Batil, for the State
J Kolowe, for the Accused

DECISION ON VERDICT

24^th October 2024

1. BERRIGAN J: The accused is charged with forging and uttering a false document, namely a police clearance certificate in his name, contrary to ss462(1) and 463(2), Criminal Code, on 24 and 29 August 2022, respectively.
   

State Case

2. The State alleged that the accused was employed as a carpenter by Lamana Development and had lived in Papua New Guinea for more than 10 years. On 24 August 2022 the accused went to Vision City with his Filipino friends and met an unknown person who told him that he could assist him obtain a police clearance certificate. The accused gave the man K150. The man told him to wait and returned three to four hours later with the police clearance certificate. On 29 August 2022 the accused sent the police clearance to New Zealand. When processing the accused’s visa application New Zealand Immigration found that the certificate was missing certain features compared to a genuine Royal Papua New Guinea Constabulary Police certificate and sought assistance through the New Zealand Transnational Crime Unit from the RPNGC Transnational Crime Unit to verify the genuineness of the certificate. Investigations revealed that it was fake because it lacked certain security features.
   

State Case

3. The State called three RPNGC officers, First Constable Nicole Maree Chee, attached with Interpol, Inspector Wama Kasa, OIC National Criminal Records (NCRO), and Constable Diceson Kodong, also of NCRO.
   
4. The accused was among a number of expatriates who lodged applications for police clearance certificates on 26 May 2022. He was given a registration form notifying him to pick up the clearance on 9 June 2022. It appears that in the case of expatriates, applications must first, or at least at some stage, also be reviewed by Interpol, and once cleared, the certificate is printed by Gordons NCRO.
   
5. The NCRO and the Interpol office were closed in June 2022, however, due to police duties in the National General Elections, and did not reopen until sometime in August 2022.
   
6. Insp Kasa says that on 2 September 2022 former OIC, Transnational Crime Unit, Senior Sergeant Sevesa, asked him to review a police clearance certificate bearing the name of the accused. He referred it to C/Kodong for review. The latter was unable to find the accused on the system and found that 40 of the 42 security features usually contained within the certificate were not present.
   
7. Present were two crowns in the background of the document (watermarks). As I understand his evidence, the 40 other security features which are normally present are a sequence of unique numbers assigned to each certificate, normally found on the bottom of the certificate. The template admitted, however, is cut off at the bottom and it is not clear to me exactly where or how the numbers normally appear.
   
8. Insp Kasa maintained that the certificate the subject of the charges appeared suspicious to him, but he did not articulate what about it was suspicious other than it appeared that it appeared so given his long experience in the area. C/Kodong agreed that to an untrained person it would not be apparent that the certificate the subject of the charges was not genuine.
   
9. Insp Kasa and C/Chee said that C/Chee walked into the NCRO and overhead the conversation between Insp Kasa and S/Sgt Sevesa. She told them that the accused’s application, which was on her desk, had not yet been processed. Insp Kasa obtained a telephone number for the accused from C/Chee and called him in for interview.
   

Defence Case

10. The accused gave evidence that he applied for the clearance on 26 May and was told it would be ready by 9 June 2022 by officers at the front desk at Gordons. He went back many times, but it was not ready. When the office opened again after the elections, he asked why it was taking so long and it was suggested to him that he go to the Interpol office at Konedobu and that is where he met C/Chee. She told him that she did not know where his paper was and to go back to Gordons. On 24 August he was in the ATM line at Vision City telling stories with his Filipino friends and asking why his police clearance was taking three or four months when others had already been released. A man approached him and said that he had a brother and friend in “Forensic” who could help. The man asked for K500, but the accused said that was too much. The man asked for K150 which the accused gave him. He was told to wait. He waited for three to four hours at Vision City before the man found him at the food court and gave him the police clearance certificate. He did not know it was fake. He submitted it “in New Zealand” on 29 August 2022. On 26 September 2022 a Filipino friend went to the Interpol office to collect his police clearance and Insp Kasa told him to tell the accused to come to the office. He went the same day and Insp Kasa told him that he was an illegal alien who made a fake document. He said he wasn’t and showed him his passports. He was told to come back the following day, which he did. He was interviewed but not charged. He asked a manager at Vision City for CCTV footage but was told it was deleted every 30 days. He gave the man’s statement to police, but they did not include it in the court file.
    

Count 1 – Forgery

11. The evidence establishes that the document was not issued by an authorised officer from the NCRO.
    
12. I am satisfied beyond reasonable doubt that the police clearance is a forgery, such that it is a “false document” under the Criminal Code.
    
13. It falsely purported to be issued by lawful authority as testifying to the contents of a register or record kept by lawful authority when it purported to be made by or on behalf of some person who did not make it or authorise it to be made, namely the Commissioner of Police for the purpose of s 459(2)(iii)(A)(b)(i), Criminal Code. In addition, it contained a seal or mark which was made without lawful authority and was in such a form as to resemble the genuine seal or mark of the RPNGC for the purposes of s 459(3), Criminal Code.
    
14. I am satisfied beyond reasonable doubt that somebody made the document knowing that it was false, contrary to s 462, Criminal Code.
    
15. It is possible that the accused deliberately intended that another person forge the document and therefore aided, counselled or procured the forgery, pursuant to s 7(b), (c) or (d), Criminal Code, but the State has failed to establish that beyond reasonable doubt.
    
16. The State relies on the statements made by the accused in his record of interview, which are essentially in line with his evidence.
    
17. Let me be very clear, I do not believe most of what the accused says. It is implausible that whilst standing in an ATM queue at Vision City, with his Filipino friends, speaking, according to his record of interview, in Filipino, whilst wearing a mask in the midst of the Covid protocols, a Papua New Guinean man overheard them use the words “police clearance” and asked them if they had a problem in “Police Clearance”, and that he then offered to have his brother, who was working in the office, issue a certificate for the sum of K500, and when that was refused, offered to do so for the bargain price of K150, and that after receiving the cash, he returned several hours later to search out and somehow find the accused at the food hall of a large shopping mall. It is a nonsense.
    
18. I asked the accused at the close of his evidence, if he said anything else to the man and he said “no”. When I asked him whether he had given him his name, he suddenly remembered that he had given the man his name and his passport number and told him that he would need those for reference. I do not believe for one moment that the accused gave a complete stranger who came up to him in a shopping centre, asking for money, his name and passport number.
    
19. It is further implausible that the accused did not, if I were to accept his evidence, ask this man about the validity of the police clearance, when he received it, in those circumstances. He says he did not do so because he had heard of “other friends being assisted to get certificates”. And there perhaps lies the truth at least as far as the accused is concerned.
    
20. Putting aside the fanciful meeting at Vision City, the State has failed to exclude the possibility that the accused gave money to another person with the intention that, that person would cause an officer within the NCRO to issue the police clearance certificate as part of his duties, that is he gave a “bribe” for the purpose of getting his certificate issued by the RPNGC. Or in legal terms, he gave property to or for a person, on account of (for the purpose of) the issuance of the certificate by a person holding public office within the RPNGC, contrary to s 87(1)(b) of the Criminal Code.
    
21. That is far more likely, and the accused admits that he gave the money to a person for that purpose, albeit that I don’t accept that he gave the monies to a stranger at Vision City, and albeit that the accused appears to deny that he acted corruptly (or dishonestly as that has been held to mean). The accused is an intelligent man, however, and he must have appreciated what he was doing.
    
22. After all, there is no suggestion by the State that the accused was not entitled at some stage to receive a police clearance and there is no dispute that the accused genuinely wanted the police clearance so that he could apply for employment in New Zealand. I think given his age and experience he would have appreciated the possibility that New Zealand would seek to verify the clearance. It is unlikely in those circumstances that he would deliberately run the risk of using a forged or “fake” instrument.
    
23. It also appears that by late August the NCRO was operating again and the accused’s admissions about giving monies are consistent with an intention on his part to speed up the issuance of the certificate through an intermediary.
    
24. It appears that the accused himself was tricked, however by whomever he gave the monies to for the purpose of facilitating the certificate from NCRO. The fact that the person who received the monies may never have intended that they be given to an officer within the NCRO would not relieve the accused of liability as the offence is complete upon the corrupt giving or offering to give a benefit for the purpose of s 87(1)(b), Criminal Code.
    
25. The State did not, however, charge the accused in the alternative for official corruption. This is not a case where s 547, Criminal Code applies. The offences are of distinct nature.
    
26. In all the circumstances the accused must be acquitted of count 1.
    

Count 2 - Uttering

27. I have no reason to doubt that RPNGC received an enquiry from New Zealand authorities about the certificate, but there was no actual evidence of this. The State did not produce any evidence from New Zealand Immigration, the New Zealand Transnational Crime Unit nor the RPNGC Transnational Crime Unit. The evidence of Insp Kasa that Sgt Sevesa told him that the RPNGC Transnational Crime Unit had received a request from the New Zealand Transnational Crime Unit is hearsay. There is no evidence to show when or how the accused submitted the document other than his admission that he did so “in New Zealand”. There is no evidence to suggest that the accused left the country so presumably this was at the consulate or online. Perhaps his admission would be enough to establish that he “dealt with” the document for the purpose of s 463, Criminal Code but the State has failed to prove that the accused knew that the document was false, such that, the State has failed to exclude the possibility that the accused believed that the clearance was issued by the NCRO albeit as a result of the payment of monies to an intermediary.
    
28. The copy of the certificate tendered into evidence is not a good one. I don’t know where the original is, but the copy produced appears to be a photocopy of a photograph, or perhaps a screenshot, of the certificate. Putting that aside, it is not immediately apparent that the certificate is a false document, at least on my observation and, as C/Kodong concedes, on its face to the untrained eye. The watermarks are, as he says, comparable with those which appear in genuine certificates.
    
29. In reaching this conclusion I have considered whether it might be argued that the accused knew that the certificate was false in the sense that he “knew” or, rather, assumed that it purported to be issued in circumstances in which the Commissioner would not have authorised its making (if the Commissioner had known that monies had been paid to facilitate its issuance). It raises an interesting interpretation question perhaps but that is not what happened in this case in any event.
    
30. It follows that the accused must also be acquitted on Count 2.
    

Verdicts accordingly.
___________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused