Regina v Tau [1996] SBHC 95; HCSI-CRC 58 of 1993 (13 June 1996)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.58 of 1993

REGINA

-v-

JOHN MARK TAU AND 16 OTHERS

High Court of Solomon Islands
(Palmer J)
Criminal Case No. 58 of 1993

Hearing: 1/11/95-3/11/95, 6/11/95-9/11/95; 13/11/95-17/11/95; 23/11/95;
1/4/96, 22/4/96; 28/5/96-31/5/96; 3/6/96-6/6/96, 11/6/96.
Ruling: 13th June, 1996

F. Mwanesalua for Prosecution
B. Titiulu for 3rd & 9th Defendants
P. Lavery for 1st, 13th & 17th Defendants
Mrs. Samuels for 2nd, 4th & 6th Defendants
J. Remobatu for 8th, 14th, 15th & 16th Defendants
T. Kama for 10th Defendant
P. Pupura in person
J. Paoki in person

PALMER J: There are four Accused who have sought to make an application at the close of prosecution case, of a submission of no case to answer. These are John Mark Tau (D1), Fred John Meleuto (D8), Barnabus Konare (D13), and Rex Bobu (D14).

JOHN MARK TAU (D1):

D1 is charged with 5 counts; one for receiving to which he has pleaded guilty, and the rest for forgery. It is in respect of the fourth count to which a submission of no case to answer has been made. That count reads:

“That John Mark Tau, between 1st and 10th July 1992, at Honiara, with intent to defraud, forged a valuable security, to wit a bank withdrawal form, contrary to section 329(2)(a) of the Penal Code.”

The submission of no case has been made on the grounds that there is no evidence to support such a charge. This raises the question as to what the elements of that charge are. The elements of the charge in my respectful view are twofold. First, prosecution must prove that there has been a forgery of a valuable security; i.e. a bank withdrawal form; and secondly, prosecution must prove that there is an intention to defraud.

In the submissions of the learned Director of Public Prosecutions, he relies on the provisions of section 21 (b) of the Penal code to justify charging the accused with that offence. Section 21 (b) reads:

“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

(b) every person who does or omits to do any act-for the purpose of enabling or aiding another to commit the offence.”

It is not clear on the charge itself what particular withdrawal form is referred to, but on the evidence and the list of exhibits before this Court, it appears that the particular bank withdrawal form is the one dated 10 July, 1992, in respect of account number 0915387236010.

The prosecution evidence is contained essentially in the caution statement of D1 dated 14 January, 1993, at page 8 and 9 of the original statement. That evidence can be summarised as follows. That D1 obtained a cheque leaf from the ANZ Bank (his place of work, no. 595116) and had it stamped with the account number of Hyundai Timber Company Limited - No. 101208104. He then gave the cheque to Jackson Paoki, a prison officer to take back to John Teohu and Stanley Bade (who were prison inmates). That cheque was then forged and deposited into a fictitious account bearing the name, Balo Community Fund, at the National Bank of Solomon Islands Limited. It was from that fictitious account at the National Bank of Solomon Islands Ltd that a bank withdrawal form was subsequently forged and presented for payment at the same Bank.

For the purposes of this submission of no case to answer, it is not in dispute that the only evidence of prosecution against the Accused on this charge pertains to his direct involvement in providing the ANZ Bank counter-cheque leaf no. 595116 and stamping it with the account number of Hyundai Timber Company. There is no evidence to show that he was involved directly or indirectly with the forgery of the National Bank of Solomon Islands Limited bank withdrawal form dated 10 July, 1992 for $17,000.00.

The element of forgery is defined in section 326(1) of the Penal Code as “... the making of a false document in order that it may be used as genuine....” The issue before this court is in what way did this Accused act or omitted to do any act which enabled or aided another person to commit the said offence; which is, the forging of the withdrawal form dated 10 July, 1992? The only evidence adduced on this point is the part played in providing the ANZ Bank counter-cheque leaf. Apart from that, there is no evidence to show in what way, form or manner, he assisted in the forging of that withdrawal form. It is my respectful view that his actions are too remote to be sufficiently linked to the forging whether directly or indirectly, of that withdrawal form. I note that his actions have been the subject of a separate forgery charge under Count 4 of his indictment. On that basis alone, it is quite inappropriate that he should be also charged with another separate offence but based on exactly the same facts. That is bad on duplicity grounds.

There has been some suggestion made that there is evidence to show that this Accused did benefit out of the proceeds of that withdrawal, and therefore should be included in the commission of that offence.

Unfortunately, I do not agree that it is the same thing. The act of receiving is a separate and distinct matter recognised in law and can be the subject of a separate charge against this Accused. I note that he has not been charged with receiving. That however, does not imply that a forgery charge can be substituted.

I am satisfied the defence has shown that there is no evidence or insufficient evidence adduced by prosecution in respect of count 4 to put this Accused to his defence, and I accordingly acquit him of that charge.

FRED JOHN MELEUTO (D8):

D8 is charged with the offence of receiving stolen property contrary to section 306(1) (a) of the Penal Code that between 12th and 13th October, 1992, at Tetere, he received the sum of $1,400.00, the property of JOVC, knowing or having reasons to believe the same to have been stolen.

The submission of a no case to answer is made on the grounds that there is no evidence or insufficient evidence to support the charge.

The crucial element in section 306(1) (a) is “... knowing the same to have been stolen or obtained in anyway whatsoever under circumstances which amount to felony or misdemeanour”. In Archbold Criminal Pleading Evidence and Practice at paragraph 18-165, the learned Author described the element of knowledge and belief as follows:

“It is not sufficient to prove that the goods were “handled” in circumstances which would have put a reasonable man on inquiry. A summing-up is defective if in effect it leaves the jury with the impression that suspicious circumstances, irrespective of whether the Accused himself appreciated they were suspicious, imposed a duty as a matter of law to act and inquire, and that a failure to do so was to be treated as knowledge or belief: R -v- Grainge (1973) 59 Cr. App. R.3, C.A. The question is a subjective one, and it must be proved that the Defendant knew, or believed the goods to be stolen. Suspicion that they were stolen, even coupled with the fact that he shut his eyes to the circumstances, is not enough, although those matters may be taken into account by a jury when deciding whether or not the necessary knowledge or belief existed...”

The learned Author then cited with approval the leading exposition by Boreham J. in R-v-Hall (E) (1985) 81 Cr. App. R 260, C.A., as to the distinctions between suspicion and belief:

“A man may be said to know that goods are stolen when he is told by someone with first hand knowledge (....such as the thief ...) that such is the case. Belief, of course, is something short of knowledge. It may be said to be the state of mind of a person who says to himself ‘I cannot say I know for certain that these goods are stolen, but there can be no other reasonable conclusion in the light of the circumstances, in the light of all that I have heard and seen’. Either of those two states of mind is enough to satisfy the words of the statute. The second is enough (that is belief) even if the Defendant says to himself: ‘Despite all that I have seen and all that I have heard, I refuse to believe what my brain tells me is obvious’. What is not enough, of course, is mere suspicion. ‘I suspect that these goods may be stolen, but it may be on the other hand that they are not’. That state of mind, of course, does not fall within the words ‘knowing or believing’“ (at page 264).

The crucial evidence adduced by prosecution against this Accused is contained in his confessional statement dated 20 January, 1996. Briefly, his statement was that he did receive the sum of $600.00 from a fellow prison inmate, Stanley Bade, but was not told what it was for and neither did he ask. The only thought he had when he received the money was that it was given to him for safe-keeping. He stated that when the same person had just arrived at Tetere Prison earlier, he had given him $400.00 to look after. Later, he collected his money and so he thought to himself that the money was given to him for safe-keeping again. He also explained that he could not give the money back when he was transferred to the Central Prison because he did not take the money with him. It had been kept in his basket, and this was not brought down until two weeks later.

Apart from the above evidence, there is no other evidence to implicate this accused as to the subjective state of his mind at the time of receipt of the money. There is no evidence or insufficient evidence, to show that this Accused knew that the money he received was stolen money. The circumstances in which he received the money may look suspicious, as submitted by Mr Mwanesalua; that it was given by another prison inmate in his room alone without any explanation, and that a reasonable person may have been put on inquiry. Unfortunately, that is not enough in my respectful view. The evidence as contained in the statement of this Accused in my view is not sufficient such that it can be said that, there is no other reasonable conclusion than to say that the goods were stolen. The Accused had given a plausible explanation as to how the money had been kept in his custody and why it had not been returned to Stanley Bade when he was transferred.

I also note that the charge relates to an amount of $1,400.00. The only evidence available before this court relates to the $600.00. There is no evidence whatsoever pertaining to the remainder of $800.00. In the circumstances, I am not satisfied that it had been shown that there is sufficient evidence with which to put this Accused to his defence. Accordingly, I order that he be acquitted and released forthwith.

BARNABUS KONARE (D13):

This Accused is also charged with the offence of receiving contrary to section 306(1) (a) of the Penal Code that between 1st and 31st October 1992 at Tetere, he received the sum of $1,000.00 being the property of JOVC, knowing or having reasons to believe the same to have been stolen.

The submission made in respect of a no case to answer is that there is no evidence or insufficient evidence to show that this Accused knew or had reasons to believe that the money he received was stolen.

Again the evidence relied on is that contained in his confessional statement dated 8 January, 1993. The question before this Court is whether that evidence is sufficient to put this Accused to his defence.

The relevant parts of his statement are contained in pages 7 to 16. The gist of which states that he did acknowledge the receipt of $1,000.00 from Dick Okea, but denied any knowledge that it was stolen money.

In his submissions, Mr Mwanesalua sought to highlight a number of factors. These included the following:

(i) That the original reason for monetary assistance on this accused’s part had already been resolved, and so there was no justifiable or reasonable explanation for the payment.

(ii) The Accused did not know where the money came from.

(iii) It was given in secret at night (7.00 p.m) under a mango tree.

(iv) That it was given in breach of the Standing Orders of the Prison Service, which forbids Prison Officers from borrowing money from prisoners.

(v) In the second statement of this Accused dated 20 January, 1993, at page 26, he made the following ‘incriminating’ statement:

“This fala stealing me start for trap insaet long sometimes from July or August 1992.”

I have listened carefully to the submissions of both learned Counsels and read through the statement of the accused, and have come to form the following view. First, as to the Accused’s explanation concerning money for payment of compensation that related to the offer of assistance given by Dick Okea to this Accused. It was explained very clear where the source of that assistance would come from; that is from Dick Okea’s uncle. By the time it was confirmed to this Accused by Dick Okea that the money would become available from his uncle, the issue about compensation had been resolved and so this was conveyed to Dick Okea. In November however, Dick Okea offered to give $1,000.00 to this Accused to use, but to repay it sometime before 1995 (the year in which Dick Okea was expecting to be released). This Accused specifically stated that he accepted that money on the belief that the money belonged to Dick Okea and that he would repay it before the prisoner was released in 1995.

Now is this a reasonable belief to hold in the circumstances, or should this Accused have been put on inquiry?

One of the questions put to this Accused in his statement (question 20), was whether he thought or believed that Dick Okea’s uncle could help him with his request. In his response (answer 20), this Accused stated that he thought so because Dick Okea had also explained to him that they have a family business running a chainsaw and that whatever money he asks for they would normally give it.

It may be argued that the state of mind of this Accused is a bit naive. However, the onus is on prosecution to displace that and to impute in its place the element of guilty knowledge and, or belief.

The issue before the Court therefore is whether taking those factors raised by Mr. Mwanesalua into account [in particular items (ii)-(v)] that no other conclusion is open to this Court to reach other than that the Accused knew or had reason to believe that the money was stolen.

In his statement the Accused stated that he did not know if the money belonged to Dick Okea’s uncle or his own. I do not think that the fact he did not know whether the money belonged to Dick Okea’s uncle or not, of much relevance. It was offered to this Accused on very generous terms and based on the prior explanations and conversations that had transpired between these two persons, I do not think it was exceptional, or extraordinary, or unreasonable, that this Accused believed what Dick Okea had said to him.

As to the issue pertaining to the giving and receipt of the money in secret, at night (7.00 p.m) and under a mango tree, with no one else around, although, on one hand that does raise suspicious thoughts about the purity of that transaction, this Accused did explain that it was done in secret because the Standing Orders of the Prison Service do not allow Officers to borrow money from prisoners. Whilst I appreciate that one of the objectives of the Standing Orders is to protect the integrity of Prison Officers, so that if they are caught in breach of such Orders, in such suspicious circumstances, they may open themselves to attack as to their innocence and purity, I am unable to bring myself to the conclusion urged upon me by the learned Director to impute a guilty mind to this Accused as to his knowledge and belief of the said money. Yes I recognise that this Accused had appeared to compromise his sense of integrity and dignity as a Prison Officer, and that should have been a proper matter for discipline. However, I am not satisfied that it had been shown that that was done because this Accused knew or had reason to believe that the money he was receiving was stolen money. This Accused had expressly made it clear that had he known that it was stolen money, he would not have taken it. There are reasonable grounds in which this Accused, in my respectful view, was entitled to take the view or hold the opinion he did concerning those moneys and that prosecution has not displaced the innocent subjective state, of his mind as to those moneys.

The reference in his second statement as to having been trapped in the allegations pertaining the stolen money, in my view is but a reference to having been included in the ring of stolen money, by virtue of having borrowed innocently, some money offered on what appeared initially to be innocent generous terms, but later turned out to be tainted money and terms.

The evidence against this Accused is insufficient so that a reasonable tribunal would not be able to even consider whether it might enter a conviction.

I am satisfied accordingly that there is no case to answer and I also order that this Accused be acquitted and released.

REX BOBU (D14):

This Accused is also charged with the offence of receiving contrary to section 306(1)(a) of the Penal Code, that between 10 and 30 April, 1992, at Honiara, he did receive the sum of $4,000.00, being the property of Hyundai Timber Company Ltd, knowing or having reasons to believe the same to have been stolen.

The submission of a no case to answer is again based on the ground that there is no evidence to support the charge. The only prosecution evidence tendered against this Accused is contained in his confessional statement dated 27 January, 1993 and 28 January, 1993.

Having read through both statements of this Accused it should be made clear right from the beginning that I find no evidence of receiving with respect to an amount of $4,000.00 as stated in the particulars. However, there is sufficient evidence in respect of a charge of receiving for a lesser amount of $500.00. I have considered the matters referred to in the caution statements of this Accused and I am satisfied they can be construed as pointing to no other reasonable conclusion than that this Accused knew or had reasons to believe that the money was stolen. To fully appreciate this, it is necessary to consider the receiving of that $500.00 in the context of the preceding events as referred to in the statement of this Accused. These briefly can be summarised as follows.

In the second statement of this Accused dated 28 January, 1993, (page 9 of the bundle of document), this Accused stated that he was shown a cheque by the late John Iniela (prison inmate) for a very large sum. This caused him to think that it may have been the money which John Iniela went to prison for, so he asked him where he got that money from. The response of John Iniela according to his statement was unclear. In other words, there was no satisfactory explanation. So right from the beginning, this Accused had already become suspicious in his own mind as to the status of the money in that cheque. That would have put him on notice to inquire.

Subsequently, he gave an account of how the money was obtained. It was not given to him to obtain cash at the Bank but to another Prison Officer. That would have put him on further enquiry. If it was clean money, there is no logical explanation for using another Prison Officer to collect the money.

Further, he was told to wait at a specific place; the Guadalcanal Province Area and at a particular time. Why go to all that arrangement if it was clean money. That should have caused even greater concern.

When James Kofana returned from the bank and met him at the appointed place, he was told that the cheque had not yet been signed by the boss at the bank and told to wait. If it was clean money, he could easily have accompanied James Kofana to the bank at that point of time. There is no logical or reasonable explanation as to why he was told to wait at the Guadalcanal Province area, throughout that period of time. Customers go in and out regularly from the banks.

Further, when the money was received, they both went to a house at Bokonavera to distribute the money. He was given the sum of $5,100.00 to give to John Iniela. If it was clean money then why wasn’t the money taken to John Iniela in full and distributed in his presence. This Accused knew that the proceeds of the cheque constituted a substantial sum and therefore, whoever is the owner would be very concerned that if any distribution is made that it be done properly and in his presence. This Accused knew that James Kofana does not own that money. According to his statement, it was John Iniela, yet he was willing to allow J. Kofana to distribute the money in the absence of John Iniela. There may be a valid reason for doing what they did, in that John Iniela was a prisoner, but if everything was clean and innocent, then why all the secrecy involved.

Finally, this Accused stated that they went back to the same area later and met up with John Mark Tau, and gave him his share from John Iniela. When the whole context through and in which eventually the $500.00 came into his hands is considered, I am satisfied there is evidence on which it may be reasonably concluded that this accused knew or had reason to believe that that money was stolen.

The proper order in respect of this Accused therefore is to discharge him for the offence of receiving in the sum of $4,000.00, but to leave the matter as to the question of $500.00 in the discretion of the learned Director, whether he would wish to institute a fresh charge of receiving for a lesser amount.

A. R. PALMER
JUDGE