Kane v State [2022] PGSC 9; SC2201 (2 March 2022)

SC2201

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 12 OF 2020

ROBIN KANE
Applicant

V

THE STATE
Respondent

Waigani: Cannings J, Shepherd J, Auka J
2022: 23^rd February, 2^nd March

CRIMINAL LAW – review of conviction for forgery, Criminal Code, Section 462(1) – elements of offence – whether sufficient evidence on which court could be satisfied beyond reasonable doubt of existence of all elements of offence – whether documents were forged – whether applicant forged documents – circumstantial evidence.

The applicant sought review by the Supreme Court of his conviction by the National Court of three counts of forgery under s 462(1) (forgery in general: punishment in special cases) of the Criminal Code, which states:

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

The National Court found that he forged company document forms 13, 15 and 16 for the purpose of making unauthorised changes to the shareholders and directors of a company, including making himself a shareholder and a director. The applicant argued before the Supreme Court that the National Court erred in law by not setting out and addressing the elements of the offence, by entering a conviction despite insufficient evidence of all elements of either offence, by entering a conviction in the absence of the allegedly forged documents and by basing a conviction on circumstantial evidence without setting out and applying the necessary principles

Held:

(1) The elements of an offence under s 462(1) of the Criminal Code are that:

• (a) a ‘document, writing or seal’;
• (b) has been ‘forged’ by the accused.
  

(2) To determine whether a document has been forged, it must be proven, by virtue of s 460(2), that the accused has (i) made a false document; (ii) knowing it to be false; (iii) with intent that it may be used or acted on as genuine either to the prejudice of any person or with intent that a person, in the belief that it is genuine, be induced to do or refrain from doing any act.

(3) It is highly desirable for a trial judge to set out the elements of the offence, consider the evidence before the court, state that the prosecution has the burden of proving the existence of each element beyond reasonable doubt and state whether the court is satisfied that the prosecution has discharged that burden of proof. If such principles are not expressly set out, it must be demonstrated from a fair consideration of the reasons for judgment, by necessary implication, that in fact such principles have been applied by the trial judge.

(4) If the State’s case is dependent on circumstantial evidence it is highly desirable for the trial judge to expressly set out and apply the relevant principles in the reasons for verdict. If they are not set out and applied expressly, a mere statement of the relevant principles possibly in a summary form either with or without citing its source and applying them to the case before the Court might suffice; or a reference to the leading authorities on point and its application to the case at hand might suffice.

(5) The trial judge erred in law by: failing to set out and address the elements of an offence under s 462(1); not adequately demonstrating that he was satisfied that the State had proven beyond reasonable doubt the elements of each offence of which the applicant was convicted; entering a conviction without essential evidence, viz the allegedly forged documents; and convicting the applicant based on circumstantial evidence without setting out and applying the principles of circumstantial evidence.

(6) The errors were significant and rendered the verdict unsafe and unsatisfactory and meant that the decision of the National Court was based on a wrong decision of law. A miscarriage of justice occurred. The application for review was granted. A new trial would have no practical utility. A verdict of not guilty on both counts on the indictment was entered.

Cases Cited

The following cases are cited in the judgment:

Billy Nara v The State (2007) SC1314
Daniel Maiyau v The State (2017) SC1644
Devlyn David v The State [2006] 1 PNGLR 187
Francis Potape v The State (2015) SC1613
John Beng v The State [1977] PNGLR 115
Paulus Pawa v The State [1981] PNGLR 498
Rolyn Yugari v The State (2018) SC1691
The State v Alex Tongayu (2021) N8810
The State v Garth McIlwain (2013) N5350

Counsel

N Hukula, for the Applicant
M Tamate, for the Respondent

2^nd March, 2022

1. BY THE COURT: The applicant, Robin Kane, was convicted after trial in the National Court of three counts of forgery under s 462(1) of the Criminal Code and sentenced to seven years imprisonment. He applies for review of the conviction. Leave has been granted under s 155(2)(b) of the Constitution to make the application.

2. The applicant was convicted of forgery of company document forms 13, 15 and 16 for the purpose of making unauthorised changes to the shareholders and directors of a company, Moitaka Development Corporation Ltd, including making himself a shareholder and a director.

3. The applicant argues that the National Court erred in law by:

1. not setting out and addressing the elements of the offence;
   
2. entering a conviction despite insufficient evidence of all elements of the offence;
   
3. entering a conviction in the absence of the allegedly forged documents; and
   
4. basing a conviction on circumstantial evidence without setting out and applying the necessary principles.
   

THE TRIAL

4. The trial was conducted in 2018. The State alleged that (despite the vague allegation in each count that the offence was committed between 29 October 1998 and 24 June 2013) in 2013 the applicant forged three company documents, forms 13, 15 and 16, for the purpose of making unauthorised changes to the shareholders and directors of Moitaka Development Corporation Ltd (“the subject company”) including making himself a shareholder and a director. There were some uncontentious facts at the trial, including that:

• since its incorporation in 1998, the sole director and shareholder of the subject company was Mek Onguglo, the complainant;
  
• on 24 June 2013 the historical extract for the subject company in the Register of Companies was amended to include as additional shareholders and directors, the applicant and four other persons;
  
• Mek Onguglo remained as a shareholder and director of the subject company.
  

5. We note that though the above facts were regarded as uncontentious, there was no actual evidence to support them as the certificate of incorporation and the historical extract, though admitted into evidence by consent, were not in relation to the subject company, but to a company with a similar name, Moitaka Development Cooperation Ltd.

State case

6. The State’s case was based on ten documents admitted into evidence by consent and the oral testimony of two witnesses.

Documentary evidence

7. The documentary evidence consisted of the following exhibits:

A – witness statement by Tau Nauna Henao, former Assistant Secretary for Education, who gave a background of the Moitaka Primary School and a dispute over the land on which it had been built and the closure of the school in 2008 due to that land dispute;

B – witness statement by Sam Lora, Assistant Secretary for Education, who gave a background of the Moitaka Primary School and a dispute over the land on which it had been built and the closure of the school in 2008 due to that land dispute, which was largely between the applicant and Mek Onguglo;

C – witness statement by the police investigating officer, Inspector Lucas Muka, of the National Fraud & Anti-Corruption Directorate who explained his investigation of allegedly unlawful changes on 24 June 2013 to the shareholders and directors of the subject company, which he believed were made by the applicant “and Max Karapen with their cohorts” who had colluded with officers of the IPA (Investment Promotion Authority, the governmental body which forms the administrative umbrella housing the Registrar of Companies and the Companies Office) to defraud the subject company so that they could secure the subject company’s land, Portion 2334, at Moitaka, National Capital District;

D – the applicant’s record of interview dated 2 March 2015, which included the following series of questions:

29. The said company styled Moitaka Development Corporation Limited was ceased [sic] on 26^th June 2013, is that right?

Ans. Yes

30. You, Max Karapen, Lena David and Alphonse Nanga change the IPA record of MDCL and insert yourselves as Director and Shareholders of the company, care to comment?

Ans. Yes, these changes were done at the community at 8 Mile.

31. Can you confirm what actually happened to the IPA records when you and the other Directors included sharing two shares each and appointed as Directors?

Ans. Before MDCL was incorporate, there was a Moitaka Project which was run and managed by community under the constitution of Moitaka Project. After five years the community was to vote in new project committee. When this was due we made changes through the community.

32. Confirm that Mek Onguglo being the former director and sole shareholder for MDCL was not at the time of the meeting to resolve the issue of change of Directorship and shareholder, would you comment?

Ans. He was not there but the changes were made through NCDC Mediation Team recommendation.

33. According to my information, the person who facilitated the change of IPA documents for MDCL were IPA officers only known to you, would you comment?

Ans. We got the necessary forms to make changes.

34. The IPA legal officer namely Awong Asang was terminated by the Registrar of Companies for being biased in changing Moitaka Development Corporation Limited business records, care to comment?

Ans. I am not aware of that.

35. So you fraudulently orchestrated this fraudulent scheme to defraud the company styled Moitaka Development Corporation Limited, would you comment?

Ans. No, we followed the process through recommendation.

36. According to my information, it is a requirement that changing of directors and shareholders of a company, there has to be a full quorum of the directors and shareholders to hold the meeting and there must be a meeting resolution to remove or replace new shareholders and directorship of the company, what do you say?

Ans. Because the recommendation allowed us to change the record.

37. Moitaka Development Corporation Limited since inception in 1998, there was only one director and sole shareholder of the company namely Mek Onguglo, is that right?

Ans. Yes

38. Have a look at this company extract for Moitaka Development Corporation Limited dated 14 October 2013 and confirm that the director and shareholder of the said company were reversed by Registrar of Companies to Mek Onguglo, would you comment?

Ans. Yes Mek

39. On the 6^th of September 2013, the shares were reverted to the previous shareholder and ended you as the director and shareholder by Registrar of Companies, would you comment?

Ans. No idea.

40. Have a look at this letter from the Registrar of Companies dated 18^th November 2013 to Mek Onguglo confirms that he is the sole director and shareholder of the company styled Moitaka Development Corporation, care to comment?

Ans. No comment.

41. Our investigation believed that you are not part of the company structure styled Moitaka Development Corporation Limited knowingly with others only known to you had changed the IPA records of the said company to mislead the government authorities and the National Court to suit yourself and others as genuine directors and shareholders of the company, would you comment?

Ans. The changes were based on the recommendation from the ADR Team which mediated over the school and company and projects.

42. Who were the ADR Team?

Ans. Chief Yosman, Sgt Ben Isikuma and Andy Bawa Directive.

E – letter from Registrar of Companies, Alex Tongayu, to Mek Onguglo, dated 18 November 2013 confirming that the subject company’s records had been corrected to confirm that Mek Onguglo was the only shareholder and director and that the subject company had been placed “under restricted access to avoid any further illegal takeover”;

F – certificate of incorporation of Moitaka Development Cooperation Ltd dated 29 October 1998;

G – company extract for Moitaka Development Cooperation Ltd dated 31 March 2016, showing Mek Onguglo as the sole shareholder and director;

H – witness statement by Mek Onguglo, in which he refers to Moitaka Development Cooperation Ltd as his company of which he is the sole shareholder and director and alleges that Alex Tongayu “in his official capacity as the Registrar of Company [sic] was satisfied beyond reasonable doubt that the company was illegally taken over by Max Karapen and his cohorts ...”;

I – witness statement by Alex Tongayu, Registrar of Companies, dated 31 March 2016, who referred to the subject company by its correct name, Moitaka Development Cooperation Ltd, and stated amongst other things that “on the 24^th of June 2013 certain individuals whose names appeared on the extracts made illegal changes to the company records”;

J – historical extract for Moitaka Development Cooperation Ltd as at 3 July 2013, showing that on 24 June 2013 the applicant and four other persons became shareholders and directors and that Mek Onguglo remained as a shareholder and director.

Oral testimony

8. The first State witness was the investigating officer, Inspector Lucas Muka, who said that as part of his investigation he dealt with a witness, James Malip, who worked with the IPA, who was familiar with this case and who had made a statement. However, Mr Malip had died after making the statement.

9. In cross-examination by defence counsel, Mr Popeu, he agreed that in his police interview the applicant had mentioned the Moitaka project and that that was different to Moitaka Development Corporation. He also agreed that in the course of his investigation he did not see the forms that were the subject of the charges against the applicant, forms 13, 15 and 16, as the IPA officers were unable to produce them.

10. The second State witness, Alex Tongayu, Registrar of Companies, in examination-in-chief stated that there had been an internal review in 2013 of the changes in shareholders and directors of the subject company, following a complaint by Mek Onguglo. He was satisfied that the changes were unauthorised and unlawful and corrected the subject company’s records to show again that Mek Onguglo was the sole shareholder and director. The changes had been made during a transition period when the Companies Office was upgrading its record-keeping operations. That would explain why the company documents, forms 13, 15 and 16, for the subject company could not be located.

11. Answering questions from the bench, Mr Tongayu said he did not suspect any inside job in the acceptance of the forms. He distinguished between the counter operations of the Companies Office, where the forms are lodged, and the back office, where the lodged documents are processed and changes made to the register. He explained that anybody can lodge documents and it is not part of that process to double-check the signatures. Counter staff could not know if anyone forged Mel Onguglo’s signature: “the only right person to verify that the signature has been forged or not is the forensic guys”, he stated. His Honour asked: “And they cannot work on any forensic evidence when the forms are missing?” To which the witness, Mr Tongayu, replied “No”.

12. In cross-examination Mr Tongayu emphasised that no information gets into the system without the forms 13, 15 and 16. Data is entered that is reflective of whatever is in the forms. Only two persons in the Companies Office can change the data, on the instructions of the Registrar of Companies. Mr Tongayu agreed that the forms cannot be false: “You can only play around with the data and information that you enter in the form but not the actual forms.”

Defence case

13. The defence case consisted of an unsworn statement from the dock by the applicant. He said that he was the principal of Moitaka Primary School until the complainant, Mek Onguglo, closed it down in 2007. It was a big issue in the local community and the police had become involved and he was arrested and charged on three occasions. On the first two occasions the case had been struck out for want of prosecution. This was the third occasion. The applicant denied signing any of the forms 13, 15 or 16 that were the subject of the charges:

I am the head teacher and I don’t have any interest or whatsoever on the company. And my job is to teach and that’s all. I don’t go into any other offices or anything. ... As a teacher my job is to teach at the classroom. And I did not at one time go into IPA or anywhere to pursue these things that are before me now. Not one time I went to IPA. Not one time I signed these forms 13, 15 and 16. No, I did not conspire with anyone in IPA as I have nothing to gain from this. Your Honour, I believe I’ve been charged because I was a whistleblower down there trying to get our school reopened, talking to authorities to get this school reopened and repossessed. That is why I believe I was dragged into this court. They got the police on me for a crime I’ve not committed.

14. There was no other evidence for the defence.

THE VERDICT

15. The trial judge made the following observations on the evidence:

• Though the applicant claimed in his unsworn statement that he did not submit any forms to IPA, he admitted in his record of interview “that he did fill out forms to effect the changes as reflected in the company records. The admissions are contained in his answers to questions 33, 35, 36, 41 and 45”.
  
• The evidence of Mr Tongayu was that the only forms that would have been submitted to introduce new directors and new shareholders were forms 13, 15 and 16 and no other, and that the changes in question would never have taken place without those forms.
  
• Though the prosecution was not able to produce the original forms, Mr Tongayu explained that they had moved offices so the files may have been misplaced. He ruled out the possibility of any foul play.
  

16. The above is a fair description of his Honour’s summary of evidence. It is based on the official transcript of the proceedings. His Honour’s judgment and reasons for decision were delivered orally on 23 October 2018, six days after the close of argument. There is no written judgment.

17. His Honour concluded:

It was argued that the prosecution has failed to prove its case given the absence of the forms. The court is of the view that there is sufficient circumstantial evidence to make a finding of fact that the accused did falsify forms 13, 15 and 16 to become a director and shareholder as reflected in the company’s records which is supported by his answers in the record of interview. It was not disputed that Mek Onguglo did not authorise nor was he aware of the changes. So the element of falsity or dishonesty is established.

Fortunately after the discovery of the illegal change, the records have since been amended and Mek Onguglo has been restored to his original position in relation to the company.

There were evidences led in relation to a school that was built on a piece of land and that school has been closed for some time now. It has to be understood that this case is about falsification of IPA records. Whether the company owned the land and what the land was used for is merely background information and is irrelevant to the elements of the offences in question. On the evidence ultimately, I find the accused guilty as charged on all three counts.

ELEMENTS OF THE OFFENCE

18. The indictment presented against the applicant charged that he “between the 29^th day of October 1998 and the 24^th day of June 2013 at Port Moresby”:

COUNT 1: ... forged Investment Promotion Authority Form 13 purporting to be a notice of change of shareholders, from one Mek Onguglo to the said Robin Kane and four others.

COUNT 2: ... forged Investment Promotion Authority Form 15 purporting to be a consent and certificate of director (existing company), to change the shareholder and director from one Mek Onguglo to the said Robin Kane and four others.

COUNT 3: ... forged Investment Promotion Authority Form 16 purporting to be a notice of change of directors and particulars of directors, to change the director from one Mek Onguglo to the said Robin Kane and four others.

19. It is noted that the name of the subject company was not included in the indictment and there was no mention of any company to which the allegedly forged company forms related. This seems unusual but no point was taken on this at the trial.

20. The applicant was charged and convicted under s 462(1) (forgery in general: punishment in special cases), which provides:

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

21. The elements of the offence are that:

(a) a ‘document, writing or seal’;
(b) has been ‘forged’ by the accused (Rolyn Yugari v The State (2018) SC1691, The State v Garth McIlwain (2013) N5350, The State v Alex Tongayu (2021) N8810).

22. It was non-contentious that the forms 13, 15 and 16 the subject of the three counts were ‘documents’. The critical issue at the trial was whether the applicant had forged them. Regard should have been had to the definition of forgery of documents in s 460(2) (definition of forgery) of the Criminal Code, which states:

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.

23. Thus to determine that a document has been forged, it must be proven that the accused has:

(i) made a false document;
(ii) knowing it to be false; and
(iii) with intent that it may be used or acted on as genuine either to the prejudice of any person or with intent that a person, in the belief that it is genuine, be induced to do or refrain from doing any act (Rolyn Yugari v The State (2018) SC1691, The State v Alex Tongayu (2021) N8810).

24. As to how an accused will have ‘made a false document’, s 460(1) provides an inclusive definition, by stating:

In this section, “make a false document or writing” includes–

(a) altering a genuine document or writing in a material part, whether by erasure, obliteration, removal or otherwise; and

(b) making a material addition to the body of a genuine document or writing; and

(c) adding to a genuine document or writing a false date, attestation, seal or other material matter.

25. We now address the grounds of review.

GROUND 1: FAILURE TO SET OUT ELEMENTS OF OFFENCE

26. The applicant argues that the trial judge was obliged to set out and apply the elements of the offence and to show through the reasons for decision that he had applied the criminal standard of proof of beyond reasonable doubt to each element of the offence, and he did not do that, and this was an error of law.

27. As explained by the Supreme Court in Devlyn David v The State [2006] 1 PNGLR 187 it is highly desirable, in order to afford an accused person the full protection of the law, for a trial judge, in the reasons for decision on verdict, irrespective of whether the reasons are in a written or oral judgment, to:

• set out the elements of the offence;
• consider the evidence before the court; and
• state that the prosecution has the burden of proving the existence of each element beyond reasonable doubt;
  

28. It is also desirable for the judge to:

• state whether the Court is satisfied that the prosecution has discharged that burden of proof.
  

29. The importance of a trial judge giving reasons for decision in that way was emphasised by the Supreme Court in Francis Potape v The State (2015) SC1613, as follows:

Although we know of no statutory imperative or case authority that require a trial judge to make express pronouncement of his finding or conclusion that the test whether the offence has been "proved beyond reasonable doubt" has been satisfied, the test described as "a time- honoured formula" for determining guilt (Dawson v R [1961] HCA 74; (1961) 106 CLR 1 at 18) is firmly established in the common law and adopted and applied by the Courts in this country as part of the underlying law in every criminal case tried by the Courts. The test is also founded on the constitutional protection on presumption of innocence in criminal cases. Its present wording is considered clear and simple enough and Courts have resisted attempts to substitute the test with other expressions that may change its meaning: John Beng v The State [1977] PNGLR 115. The test is formulated in those words for very good reasons, given the seriousness of a criminal offence, constitutional protection of presumption of innocence and the deprivation of personal liberty that flows from the conclusion. In every criminal case, it is highly desirable that the test should not only be expressly stated but a clear determination is made that the test has been actually satisfied by the prosecution. It is imperative that such determination should be pronounced in the judgment to avoid ambiguity and confusion, given the seriousness of the offence and the deprivation of liberty that flows from that determination.

30. If such principles are not expressly set out, it must be demonstrated, as explained by the Supreme Court in Daniel Maiyau v The State (2017) SC1644 and Rolyn Yugari v The State (2018) SC1691, from a fair consideration of the reasons for judgment, by necessary implication, that in fact such principles were applied by the trial judge.

31. In the present case the trial judge did not set out the elements of the offence of forgery under s 462(1) and did not consider or even mention the definition of ‘forging a document’ in s 460(2). His Honour considered the evidence before the Court and made various observations but did not actually make any findings of fact or relate the observations on the evidence to the elements of the offence. His Honour did not expressly state that the prosecution had the burden of proving the existence of each element of the offence beyond reasonable doubt. Nor did his Honour expressly state that he was satisfied that the prosecution had discharged that burden of proof in relation to each element.

32. We have considered whether his Honour, despite not expressly stating the principles and process of reasoning required to be applied in arriving at a verdict, sufficiently demonstrated through the reasons for verdict, by necessary implication, that in fact such principles were applied. We determine that question in the negative.

33. We respectfully consider that his Honour failed to set out and address his mind to the elements of the offence and did not adequately demonstrate that he was satisfied that the State had proven beyond reasonable doubt the elements of each charge of which the applicant was convicted. We uphold the first ground of review.

GROUND 2: ENTERING CONVICTION WITHOUT EVIDENCE OF ELEMENTS

34. It was submitted by Mr Hukula on behalf of the applicant that the trial judge erred in law by entering a conviction despite there being insufficient evidence of all elements of any of the offences of which he was convicted. Mr Hukula submitted that the State’s case was fundamentally flawed due to the failure to adduce in evidence the three company forms that the applicant allegedly forged.

35. There was no evidence connecting the applicant to the forms, Mr Hukula submitted. The purported admissions in the record of interview referred to by the trial judge were not specific.

36. We uphold those submissions. The applicant admitted to his name being amongst the new directors and shareholders of Moitaka Development Corporation Ltd but did not admit to signing any forms that resulted in those changes, let alone altering any document, making a material addition to a document or adding a false date or attestation, seal or other material matter to a genuine document. The applicant stated that the changes in directors and shareholders “were done at the community at 8 Mile” in accordance with the recommendation of an “NCDC Mediation Team”. He stated that before Moitaka Development Corporation Ltd was incorporated there was a Moitaka Project and a new committee was voted in and “when this was done we made changes through the community”.

37. There was no evidence that the applicant had lodged the forms at the Companies Office or been to the IPA or spoken to any IPA officer about the change in shareholders and directors. He denied in his unsworn statement from the dock ever going to the IPA and denied knowledge of the forms. Though not a sworn statement, there was no contrary evidence by the State.

38. Having considered the evidence before the National Court and the submissions of counsel for the applicant and the respondent in the Supreme Court, we respectfully consider that his Honour did err in being satisfied that the three company forms were forged.

39. There was no evidence as to how the forms that were the subject of the charges became false documents or what the applicant did to them to make them false. The State’s case, as best we can understand it, was that the applicant had forged the signature of Mek Onguglo on each form. There was simply no evidence to support that contention.

40. We conclude that there was insufficient evidence before the court on which it could reasonably be satisfied beyond reasonable doubt that any of the forms were false documents or that if they were, that the applicant was the person or one of the persons that made them false. This means that requirement (i) of the definition of forgery was not satisfied.

41. If it had been proven that any of the three documents was false and been made so by the applicant, the court still needed to be satisfied beyond reasonable doubt that the person who made the documents knew that the documents were false (requirement (ii) of the definition of a forged document) and made the documents false with intent that they may be used or acted on as genuine (requirement (iii) of the definition of a forged document).

42. However, without evidence that any of the documents was a false document (a forgery), the court could not properly be satisfied that the applicant had forged them. In these circumstances, as element (b) of the offence of forgery under s 462(1) of the Criminal Code requires proof that the accused was the person who forged the documents, no conviction could as a matter of law be entered.

43. We are satisfied that the learned trial judge, with respect, erred in law by finding the applicant guilty of all counts on the indictment in the absence of evidence of the elements of the offence of forgery. Ground 2 of the application is upheld.

GROUND 3: ENTERING CONVICTION WITHOUT ALLEGEDLY FORGED DOCUMENTS IN EVIDENCE

44. This is a compelling argument in our view. It was raised by the defence counsel at the trial but the trial judge did not address it in his oral reasons for conviction.

45. The trial centred on the alleged forging of three documents but those documents were not in evidence and there was no evidence – other than in the somewhat vague and naïve evidence of Mr Tongayu that ‘the only way that the company register can be amended is if someone lodges a form’ – that the documents ever existed. We cannot apprehend how it could be reasonably be concluded in these circumstances that the applicant forged the documents.

46. If, as it seems, the nub of the State’s case was that the applicant had forged the signature of Mek Onguglo, that case was defeated by the evidence of Mr Tongayu, the key State witness, who said in evidence “the only right person to verify that the signature has been forged or not is the forensic guys” and agreed with the trial judge’s suggestion that “they cannot work on any forensic evidence when the forms are missing”. There was no forensic evidence presented at the trial. How could there be, as the critical documents were not available?

47. The absence of the allegedly forged documents from the evidence left a gaping hole in the State’s case. With respect, the learned trial judge erred in law by overlooking this gap in the evidence. The third ground of review is upheld.

GROUND 4: CIRCUMSTANTIAL EVIDENCE

48. The applicant argues that the trial judge erred in law by basing a conviction on circumstantial evidence without applying the necessary principles on entering convictions based on such evidence.

49. There was no direct evidence that the applicant forged the three company forms. It is clear that the trial judge convicted the applicant on circumstantial evidence. His Honour was therefore obliged to apply the principles set out by the Supreme Court in the leading case Paulus Pawa v The State [1981] PNGLR 498 that:

• the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and
  
• to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that guilt should be a rational inference but that it is the only rational inference that the circumstances would enable it to draw.
  

50. In Devlyn David v The State [2006] 1 PNGLR 187 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

• do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.
  

51. It is highly desirable for a trial judge to expressly set out and apply the above principles in the reasons for verdict but if they are not set out and applied expressly, a mere statement of the relevant principles possibly in a summary form either with or without citing its source and applying them to the case before the Court might suffice; or a reference to the leading authorities on point and their application to the case at hand might suffice (on this point, see the dissenting opinion of Cannings J in Billy Nara v The State (2007) SC1314).

52. The trial judge made scant mention of the principles of circumstantial evidence, saying only that “the court is of the view that there is sufficient circumstantial evidence to make a finding of fact that the accused did falsify forms 13, 15 and 16 to become a director and shareholder as reflected in the company’s records which is supported by his answers in the record of interview”. There was no statement of the principles underlying entering a conviction based on circumstantial evidence and no application of those principles to any findings of fact. This was an error of law. Ground 4 of the application is upheld.

CONCLUSION

53. Though this was a review of the conviction, as distinct from an appeal against it, we consider that the same principles that apply under the Supreme Court Act to appeals against conviction apply to applications for review of conviction. To succeed, an applicant must by virtue of s 23 of the Act establish that the verdict is unsafe or unsatisfactory, that the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115).

54. In this case, we consider that the errors of law entailed in the conviction are significant. The errors render the verdict unsafe and unsatisfactory and show that the decision of the National Court was based on a wrong decision of law. Furthermore a miscarriage of justice occurred. Therefore the application for review of conviction will be granted.

55. As to the consequences of granting the application, a new trial would have no practical utility. Therefore a verdict of not guilty will be entered by virtue of s 23(3) of the Supreme Court Act.

ORDER

(1) The application for review of the conviction of the applicant of three counts of forgery under s 462(1) of the Criminal Code in CR (FC) No 227 of 2017 at Waigani on 23 October 2018 is granted.

(2) The conviction is quashed.

(3) A verdict of not guilty of counts 1, 2 and 3 on the indictment is entered.

(4) The sentence is quashed and the warrant of commitment to custody issued by the National Court is revoked.

(5) Subject to any other warrant or order authorising his detention, the applicant shall be released from custody forthwith.

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Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent