Regina v Osifelo [1993] SBHC 73; HCSI-CRC 36 of 1992 (29 October 1993)

CRC 36/92.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 36 of 1992

REGINA

-v-

FAITH OSIFELO

High Court of Solomon Islands
(Palmer J.)

Criminal Case No. 36 of 1992

Hearing: 6 October 1993
Judgment: 29 October 1993

J. Faga for prosecution
J. Remobatu for the Defendant

PALMER J: The accused in this case has been charged with the offence of forgery contrary to section 329(2)(a) of the Penal Code, the particulars of which read that on the 12th of December 1991 at Honiara she forged a valuable security to wit a salary/wages authority form;

The facts in this case are virtually undisputed. On the 2nd of December 1991 the accused made an application to take her 1992 annual leave with effect from the 15th of December 1991. This was rejected on the basis that such a leave had to be earned. On the same day, she wrote a minute asking that the period of the 15th December 1991 to the end of the month be taken as unpaid leave and that she would then commence her 1992 leave proper with effect from the 1st of January 1992. This change was accepted by the Permanent Secretary of the Ministry of Foreign Affairs and Trade Relations and communicated to the accused on the 6th of December 1991.

She was then asked to complete her leave application form. This was checked by the Personnel Officer as against her Staff Leave Record Sheet and changes made, before submission to the Chief Administrative Officer, and finally to the Permanent Secretary for approval.

In her leave application form, she had applied for a total leave to be paid for 36 days. This was however reduced by the Personnel Officer, Mr. Jacob Nuia to only 12 and half days. Her unpaid leave period was for 17 days.

In her application, the accused had also requested that her leave pay be advanced. The only slight difference in her application is that she had requested that her leave pay be released before the 15 December 1991 as she would not be returning to Honiara to collect that pay before the 1st of January 1992. This was a somewhat unusual request as the normal procedures required that such leave pay be released only a couple of days before the leave commences.

In her evidence under oath she stated that she had checked with Mr. Edwin Aleziru about the possibility of advancing her leave pay for January 1992 on the 15th of December 1991, and he had said it was alright. This has never been challenged by the prosecution.

In her evidence under oath, the accused stated that her leave application was approved on the 6th of December 1991. Her leave certificate and salary wages authority form however were not issued until the 13th of December 1991 it seems. By midday Thursday 12th of December 1991 her leave certificate and accompanying salary wages authority form had still not been issued. She then panicked it seems and drew up a leave certificate and salary wages authority form, filling in the necessary details which in her opinion were correct. She then placed the name of Joseph Au as the authorising Officer and forged his signature on the documents. She then took one form to the sub-Treasury and collected a check at about 2.45 pm. She then returned to her office to check for her leave certificate but there was still none. She only sighted the leave certificate at about 3.30pm on Friday the 13th of December 1991, when she called in to her office. On reading her leave certificate she discovered that she was not entitled to be paid for the 17 days that she had claimed in her forged leave certificate and salary wages authority form. She therefore raised a recovery form straight away for 17 days and took it straight to Mr. Aleziru. This was corroborated by Mr. Aleziru. Unfortunately, that recovery form somehow got lost and so no recovery was actually made.

There is a further twist to this, in that the accused correctly completed the salary wages authority form for her paid leave for January 1992, but instead was paid for the unpaid leave period of December as well. The evidence clearly showed that this unauthorised payment was a mistake on the part of the salary clerk.

Mr. Nuia stated that he had sent the leave certificate and salary wages authority forms to the Sub - Treasury on the 11th December 1991. The witness, Susan Buania, however stated emphatically that the forms were not received on or before 12 December 1991. She also stated that when Jacob Nuia spoke to her, it was a couple of days after the accused had already collected her check. She also stated that when Jacob Nuia spoke to her, he stated that the accused’s salary wages authority form were with him. She then told him that the accused had already collected her check. Under cross-examination she repeated that the forms were not sighted by her on the 12 December 1991, otherwise she says she would have seen them. She again stated that Jacob Nuia rang a couple of days later and told her that the forms had not been sent. Under re-examination she reiterated that she did not see the forms on the 12 December 1991.

If what Susan Buania says is the truth, then the relevant forms were not sent right up until after the 15 December 1991.

In his evidence under oath, Jacob Nuia stated that he rang Susan Buania on the 16 December 1991 and enquired about the forms he had sent on the 11 December 1991. It seems to me that the forms could not have been sent on or before the 12 December 1991. No one at the Sub-Treasury sighted those forms. The only forms seen were the forged documents. It is more probable that Susan Buania was telling the truth about what actually occurred. If Jacob Nuia had sent the forms on the 11 December 1991, then it is most likely that they were not delivered until after the 12 December 1991. On the other hand it is quite possible that Jacob Nuia may have forgotten that he actually did not send the forms on the 11 December 1991.

I accept the evidence of Susan Buania in this. Her evidence is corroborated by the other witnesses at Sub-Treasury, Colleen Vendi, and Edwin Aleziru. There is no mention by the witness at Sub-Treasury that they sighted the forms sent by Jacob Nuia even on the 13 December 1991. The only reasonable conclusion in this is that the forms were not sent or delivered at Sub- Treasury before the 15 December 1991. This is to be contrasted with the evidence of the accused in which she stated that she saw her leave certificate only at about 3.30pm when she returned to the office on Friday the 13th of December 1993.

However, there is no evidence to show that a copy of that leave certificate and the salary wages authority forms had been sent to the Sub-Treasury by the 13 December 1991.

I now turn to the law. Section 329 (2)

(a) reads:

“Forgery of any of the following documents, if committed with intent to defraud, is a felony, and punishable with imprisonment for fourteen years -

(a) any valuable security or assignment thereof or endorsement thereon, or, where the valuable security is a bill of exchange, any acceptance thereof;”

The crucial element in this case is the words ‘with intent to defraud.’

The words ‘with intent to defraud’ or ‘fraudulently’ have been used interchangeably by the Court of Appeal of Solomon Islands and canvassed fully in the case Toritelia -v- The Queen. SILR 1987, 4.

In that case, the Court was dealing with an offence of embezzlement under section 266(a)(ii) of the Penal Code. The words used are ‘fraudulently embezzles’.

The facts briefly in that case concerned an employee of Central Province who spent money from a fund under his supervision for his own purposes, intending to repay them later from money to be paid to him to attend an overseas course. The overseas course never eventuated and so he informed his employer about his actions and repaid part of the money. He was then charged.

One of the questions before the Court of Appeal was, what does the word ‘fraudulently’ mean?

The President of the Court of appeal Sir John White made the following statement at page 19:

“In my view it is clear that the principles which “have been applied for many years” in defining and interpretating the adverb “fraudulently” must be applied in the present case.

At page 20 he continued:

“In the present case the appellant, charged with embezzlement admitted that he knew he had no right to take and use the funds he held as supervisor of the fishmarket at Yandina. That his intention was to pay back the amount he had taken and that he had some prospects of being able to do so was accepted. But those prospects depended on an advance payment which he would have received if an overseas course had been approved. These prospects were not fulfilled and he was never in a position to repay the amount appropriated. Clearly, the appellant had acted deliberately in breach of his obligations in a manner prejudicing another’s right knowing that he had no right to do so. That being the Appellant’s state of mind at the time of the appropriation with no more than a hope or expectation of being able to repay the amount he had taken these can be no doubt he was dishonestly prejudicing another’s right knowing he had no right to do so.”

The appellant was accordingly convicted.

President White quoted with approval the subjective test to be applied as to the state of the accused’s mind. This is a question of fact for a jury and in our jurisdiction, a question of fact for the judge or magistrate to determine.

The test which his Lordship, Sir John White applied was: “... whether the prosecution has proved beyond reasonable doubt that the accused did prejudice or take the risk of prejudicing another’s right, knowing that he had no right to do so.”

In other words, did the accused act dishonestly.

One of the other questions which their Lordships were required to address was whether an intention on the part of the accused in Toritelia’s case (supra) to repay, could amount to a defence.

The judgment in R -v - Feely [1973] QB 530, at p.668 was applied by Sir John White P. in which Lord Goddard CJ said:

“The fact that they may have had a hope or expectation in the future of repaying the money is a matter which at most can go to mitigation and does not amount to a defence.”

The second Court of appeal Judge Connolly JA, first considered the plain meaning of the word ‘fraudulently’ as used in the statute. This is what he says:

‘‘As a matter of language, the essence of fraud is deceitful or dishonest conduct with a view to unjust advantage to the offender or injury to the rights of others ..... Of its nature, the word connotes a conscious and deliberate act and knowledge that the act is wrong. Just as accidental fraud is inconceivable, so also is it impossible to describe as fraudulent an act honestly done in the exercise of a claim of right.”

Connolly JA after considering the judgment in Reg -v- Williams [1953] 1 QB 660, quoted Lord Goddard at p.81 with approval as to the required mental element to establish fraud:

“They knew that they had no right to take the money which they knew was not their money.”

At page 24 and 25, he gives the ratio of his decision:

“The present case, however, is altogether otherwise. The ‘prospect’ of being able to repay, to which the Magistrate referred was in truth a mere hope or expectation to use the language of Williams. Hopes and expectations are of their nature always liable to be defeated and knowingly taking the money of another without his consent and with no more than a hope of being able to repay it is plainly larceny. It is fraudulent on any view for the offender, with full knowledge that he is taking money he was no right to take, is, at the highest for him, exposing the owner to the risk that he may never see it again. By the same token, if he converts the money to his own use while it is in his exclusive possession, he embezzles it and, in the circumstances to which I have just referred, he does so fraudulently.”

The third Court of Appeal Judge, Kapi JA, dealt with the words “intent to defraud” in the context of section 8 of the Penal Code. This is what he says:

“The words ‘intend to defraud’ .... means that not only must a person deal with property based on an honest claim of right, but he must show that he had no intention to deprive the owner of the property. This is a question of fact. The manner in which the property is dealt with is relevant. A person who intends to restore or return property and has ability to do so may successfully raise the element. But this may not always be the case. It may be shown that such a person may have failed to fulfil the intention between the date of commission of the offence and trial. This conduct may be contrary to any intention to return or pay back property. On the other hand, a person who has no ability to pay may collect enough money from relatives in the village and repay the money as he intended. As I have indicated, it· is a question of fact and each case will be decided on its own facts.”

His Lordship then went on to state:

“On the question of “intent to defraud”, the appellant appeared to me to have attempted to fulfil his intention. When he realised that the proposed course was cancelled, he informed his superiors of the money he had taken and repaid $300.00 between the 21st May and 12th December 1984. I believe it was the action of the appellant which led to the present charge. However, there is no need for me to express any concluded view of the facts because it would not assist the appellant as he has failed to raise the element of honest claim of right.”

What is the recognised test on the question of ‘with intent to defraud’? The test which two of the Court of Appeal Judges approved is as stated in Sir John White’s P. judgment at page 14,: “.......whether the prosecution has proved beyond reasonable doubt that the accused did prejudice or take the risk of prejudicing another’s right, that he had no right to do so.”

Applying that test to the facts of this case, has the forgery committed been done fraudulently? In other words, did the accused in this case prejudice or take the risk of prejudicing the right of the Government which she had no right to do so?

It is not disputed that the accused had forged the leave certificate and salary wages authority form.

She stated emphatically on the other hand in her evidence, that she did this to collect her money before she left for Isabel over the weekend by ship. Her leave certificate and salary wages authority form were in her view unnecessarily delayed, and therefore had she not taken the course of action she did, then she would not have been able to do any shopping for herself and her children before leaving for Isabel Province on Sunday the 15th of December by ship.

She also pointed out that the money she claimed, was for her leave entitlement for the pay periods in January of 1992.

On Friday the 13th of December 1991, at about 3.30 pm, on discovering that she was only entitled to 13 days paid leave, she immediately raised a Salary Adjustment form for the 17 days she was not entitled and lodged it with the Chief Salary Officer, Mr. Edwin Aleziru. Mr. Aleziru confirmed receiving the Salary Adjustment form which he duly placed in the action tray for his officers to deal with. How that Salary Adjustment form got missing after, is a mystery to him. Had the Salary Adjustment form been duly processed, the excess payments would have been duly repaid over a period of time by deductions from her salary.

Has the accused committed the forgery with intent to defraud?

Before answering this question it is appropriate to consider first the state of mind of the accused.

The evidence as adduced before this court showed very clearly that the accused was very concerned about getting her leave advance for January 1992 sorted out and paid before or on Friday the 13th of December 1991.

This request was made known to the Personnel Officer, Mr. Nuia and it would seem that the other responsible officers would have been aware of this. The reason she had requested that her leave advance for January 1992 be paid and collected on Friday the 13th of December 1991 was because it would be virtually impossible for her to come back to Honiara towards the end of December to collect her leave advance and then return to her home.

Mr. Nuia pointed out that the accused’s request was unusual, however, he did say that there was no harm in the accused making the request to the responsible authorities at the Sub-Treasury and if they consented, to release her leave advance for January 1992 on or before the 13th of December 1991, then that is fine with him. On that basis, Mr. Nuia stated that he had the forms completed on the 11 December 1991 and sent them down to Sub-Treasury on the same day. However, as found by me, those forms never reached the Sub-Treasury on or before the 13th of December 1991.

The accused’s anxiety is confirmed in my view, in the evidence of Mr. Nuia, in which he stated that the accused regularly checked his office about the progress of her application.

The accused knew that she would be able to have her leave advance collected on or before the 13th December 1991, and, she wanted to have it collected by then, as she intended to do some shopping for herself and her children. As far as the accused was concerned therefore, it was a simple matter of having her leave certificate and salary wages authority form duly completed and sent down to the Sub-Treasury. The time it would take for the appropriate persons to complete those forms it would seem would be at the most five minutes. Yet those forms were not made available, until Friday the 13th of December, when only her leave certificate was issued, but not the salary wages authority form. What is clear is that neither forms ever reached the Sub-Treasury before close of business on Friday the 13th of December 1993.

The urgency of the accused’s request was appreciated it seems by her responsible officers, but no corresponding action seems to have been taken to expedite her request.

The subsequent actions of the accused basically were those of a desperate person. The very persons, who could assist her, were not it seems responsive. As a result of that she forged the leave certificate and salary wages authority forms to collect her leave advance for the 3 pay periods which she believed was due to her. As later shown in her leave certificate she was only entitled to 13 days leave.

I am satisfied from the evidence before me that she held an honest belief as to her entitlement to her leave advance for January 1993. Her subsequent actions on the 13th of December 1991, when she ascertained that she was only entitled to 13 days paid leave confirmed this when she immediately raised a salary adjustment form to recover the overpayment for 17 days.

There is no dispute or doubt about the fact that the accused was entitled to be paid her leave advance for January 1992. The only hesitation which Mr. Nuia held was whether she would be able to collect it on or before the 15 December 1991. Despite this, he agreed to send the forms down to the Sub- Treasury anyway, and to let them make the decision themselves as to whether she could collect it on or before the 13th of December 1991.

When the accused forged the documents, was she doing it with intent to defraud?

It can be argued that the accused was interested only in collecting her leave advance which she honestly believed was due to her and nothing more. This in my view has been clearly established in the evidence.

Her actions however, in forging the documents and presenting them to the salary clerk were clearly wrong. She was not entitled to be paid her leave advance on the forged documents. Had the salary clerk known that the documents were false (forged), he would not have paid her the leave advance, despite the fact that she may be entitled to it and despite her honest belief. This the accused knew. If she were to go along to the salary clerk and told him to pay her leave advance, he would simply have told her to get the proper forms filled in and have them lodged at the Sub-Treasury. The fact that she honestly believed that she was entitled to her leave advance for January 1992, and that she should be paid her advance on or before the 13th of December 1991 would not have made any difference to the salary clerk, who is required to payout only when the appropriate forms, duly executed, are lodged at the Sub-Treasury.

Her actions therefore were fraudulent. She committed the forgery with intent to defraud. The salary clerk was clearly deceived into paying out the leave advance, which he would not have done so, had he known the truth about the validity of the documents that were presented before him. The accused knew that she was not entitled to be paid the leave advance on the forged documents. Despite this knowledge she went ahead and presented the documents at the Sub-Treasury, which were duly acted upon. This in my view clearly established a fraudulent intent.

The accused could have taken the leave certificate and salary wages authority forms to Mr. Nuia and ask him to complete them for her. Or she could find out where the forms are and then go and see that responsible officer in person and explain her situation and ask that the application be expedited. Or she could advice Mr. Nuia to give her the forms as soon as they are ready so that she could take them personally to the Sub-Treasury. If she feels that someone is deliberately delaying her application then she could easily have gone to see the Permanent Secretary of that Ministry and explain her situation.

There are clearly other plausible alternative action that the accused could have taken, rather than to break the law, to expedite her request for her leave advance to be paid on or before the 13th of December 1991.

On the question of prejudice, it is my view, that this was caused, when the salary clerk was tricked or deceived, into paying out the money when he should not. In terms of actual or risk of economic loss, it can be argued that no one was the worse off. However, this is like the drug addict who forges his doctor’s signature for a particular drug from the chemists and then pays for it. This was an illustration used by Lord Denning in Welham’s case, in which he ruled that it was nevertheless, fraudulent.

Should the accused therefore be convicted?

I have considered circumstances under which the offence was committed, the motivations of the accused, and the reasons which she gave to explain the illegal act that she did. I have also considered the circumstances surrounding Toritelia’s case which in my view are comparable to the circumstances of this case.

In Toritelia’s case there was an intention to repay the money used by the accused. The learned magistrate dealing with the case in the lower court held that the accused had a genuine intention to repay and also had the prospect of repaying the money, and on that basis acquitted the accused of fraudulent embezzlement.

Sir John White P. and Connolly J.A. both held that an intention to repay based on a mere hope or expectation to repay, is not sufficient to negative the element of ‘fraudulent intent.’

Kapi J.A. however seemed to be saying that an intention to repay could be sufficient if it could be established, despite the fact of a mere hope or expectation to repay. He then went on to explain that when the proposed course which Toritelia was counting on to obtain the necessary funds to repay the money he had taken was cancelled, he immediately informed his superiors of the money he had taken and repaid $300.00 between the 21st of May and 12th December 1984.

It seems to me that Kapi J.A. is recognising the situation where a genuine intention to repay would be sufficient to negative fraud. That intention however would have to be established on the evidence before the court.

In this particular case, it is clear that there was no intention to obtain anything more than what the accused was entitled for her leave advance for January 1992.

So despite the fact that I have come to the view that the accused is guilty of the offence as charged, I am satisfied that there are extenuating circumstances in this case which would warrant a conditional discharge for 6 months without proceeding to any conviction. The accused must understand however, that she has committed a criminal offence. However, because of the peculiar circumstances surrounding the commission of this offence, the court has decided not to proceed on to convict her, but rather to discharge her conditionally for 6 months. If she fulfills the conditions after 6 months, then there will be no record of conviction against her.

The conditions imposed are:

(1) That any outstanding sums owed as a result of the mistaken payments for the December II Pay Period and the 17 days overpayment must be refunded or recovered in full.

(2) That the accused keeps the peace’ and be of good behaviour for that period as well.

(A.R. Palmer)
JUDGE