Regina v Solomon Islands National Provident Fund [2001] SBHC 147; HC-CRC 092 of 2000 (14 November 2001)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 92 of 2000

REGINA

–V-

SOLOMON ISLANDS NATIONAL PROVIDENT FUND AND OTHERS

High Court of Solomon Islands
(Palmer ACJ)

Hearing: 13th November 2001
Judgment: 14th November 2001

R. V. Hanson QC and J. Sullivan for the Applicant/First Defendant
Motis Pacific Lawyers for the Second, Third, Fourth and Fifth Defendants
Director of Public Prosecutions for the Respondent/Crown

Palmer ACJ: This is an application by way of Notice of Objection filed 9th November 2001 and Notice of Motion to quash Information filed 12th November 2001 on the grounds that:

1. Count 1 of the Information filed on 7th November 2001 discloses no offence known to law.
   
2. Counts 3 and 4 of the Information filed on 7th November 2001 are defective in that:
   
   • (i) they fail to describe with reasonable clearness the time at which the offence is alleged to have been committed, contrary to Section 120(f) of the Criminal Procedure Code;
     
   • (ii) they fail to give reasonable information as to the time at which the offence is alleged to have been committed, contrary to Section 117 of the Criminal Procedure Code;
     
   • (iii) they contain a latent duplicity.
     

Submissions of the Applicant (Count 1)

The Applicant had been charged according to the Information filed 7th November 2001 under Count 1 for the offence of uttering a forged document contrary to section 343(1) of the Penal Code. The particulars read as follows:

“Solomon Islands National Provident Fund Board, on 9th June 1997 in Honiara, knowingly and with intent to deceive, uttered a forged document, to wit a Feasibility Study Report purporting to be made by Pacific Actuarial Solutions Limited.”

Applicant submits there is a two-step process in the creation of the offence of uttering:

(i) the description of the prohibited act;

(ii) the characterization of the prohibited act as a felony or misdemeanour.

Both steps are necessary to create the offence. The prohibited act is described as the uttering of a forged document knowingly and with intent to deceive or defraud. Its characterization is an offence of like degree (felony or misdemeanour) as would be the case for the forgery of the particular document in question. It is a necessity that the forgery be characterized as a felony or misdemeanour. In order for the offence of uttering to succeed, it is necessary to classify whether it is a felony or misdemeanour. Learned Counsel Mr. Hanson submits the Feasibility Report does not fall within any description covered by s. 336, 337, 338, 340, 342 which cover felonies in respect of forged documents nor s. 341(2) or (3) which cover misdemeanours in respect of certain documents. The only other provision that might cover such offence is s. 341(1).

Applicant submits Section 341 generally creates forgery offences, which are misdemeanours. The distinction between s. 341(1) and (2) is between public and other documents. The requisite intent in s. 341(2) is to either defraud or deceive, whilst the requisite intent in s. 341(1) in respect of non-public documents is limited to intent to defraud. He submits the Feasibility Study is clearly not a public document and thus s. 341(1) is the only provision applicable to that document, but it does not create a misdemeanour for uttering a forged non-public document with intent to deceive.

Alternatively, s.343(1) prescribes a penalty which is the same as if the utterer were also the forger of the document in question. There is no offence of forging the Feasibility Study with intent to deceive and thus no penalty is prescribed for the relevant forgery. It follows no penalty is prescribed for uttering that document with intent to deceive.

Submission of the Respondent.

The learned Director of Public Prosecutions submits Section 343(1) should not be tied to Section 341(1) and (2) alone. There are other documents mentioned in Section 334(2) for instance which could be included as well under Section 343(1). It would be wrong therefore to confine the offence of uttering to documents mentioned in Section 341.

The law on uttering

Section 343(1) provides:

“Any person who knowingly and with intent to deceive or defraud utters any forged document, seal or die is guilty of an offence of the like degree (whether felony or misdemeanour) and shall be liable to the same punishment as if he himself had forged the document, seal or die.”

The first point to note about the offence of uttering is that it is derived from the offence of forgery – there is a direct link. There can be no uttering without a forged document. Thus only documents that have been forged are capable of being uttered. It is necessary therefore to determine the type of documents that can be forged. Section 332 is the definition section. Section 333 gives the definition of forgery, Section 334 the definition of a false document, s. 335 the meaning of “intent to defraud”. Sections 336 to 341 specify the type of documents that are capable of being forged. An Insurance Feasibility Study Report does not fall within the description of documents referred to in Sections 336 to 340, at least there has been no suggestion that it does. The only provision that is capable of applying to this type of document is the type described in Section 341. Subsection 341(2) deal with public documents. There has been no suggestion that the Insurance Feasibility Study Report is a public document. Subsection 341(2) therefore cannot apply. The only other provision that would apply is Subsection 341(1). This provision however confines the requisite intent in forgery of documents to “with intent to defraud”. It follows any offences of uttering of such forged document must be confined to the requisite intent of “with intent to defraud” and not “with intent to deceive”. The submissions of learned Counsel Mr. Hanson therefore is correct on this point that there can be no offence of uttering with intent to deceive in respect of an Insurance Feasibility Study Report under Section 343(1). It cannot be cured by amendment as Count 2 already covers the situation where the requisite intent is with intent to defraud. Count 1 accordingly should be quashed and I do so order.

Counts 3 and 4

Three reasons are given in support of the submission that Counts 3 and 4 are defective:

(i) they fail to describe with reasonable clearness the time at which the offence is alleged to have been committed, contrary to Section 120(f) of the Criminal Procedure Code;

(ii) they fail to give reasonable information as to the time at which the offence is alleged to have been committed, contrary to Section 117 of the Criminal Procedure Code; and

(iii) they contain a latent duplicity.

Counts 3 and 4 read as follows:

“Count 3: Uttering forged document, contrary to section 343(1) of the Penal Code.

Particulars of Offence

SOLOMON ISLANDS NATIONAL PROVIDENT FUND BOARD, between 9 June 1997 and 7 July 1997 in Honiara, knowingly and with intent to deceive, uttered a forged document, to wit an Excess of Loss Reinsurance Contract purporting to be made or signed by SOLOMONS MUTUAL INSURANCE LIMITED with LUXEMBOURG EUROPEAN REINSURANCE S.A.

Count 4: Uttering forged document, contrary to section 343(1) of the Penal Code.

Particulars of the Offence

SOLOMON ISLANDS NATIONAL PROVIDENT FUND BOARD, between 9 June 1997 and 7 July 1997 in Honiara, knowingly and with intent to defraud, uttered a forged document, to wit an Excess of Loss Reinsurance Contract purporting to be made or signed by SOLOMONS MUTUAL INSURANCE LIMITED with LUXEMBOURG EUROPEAN REINSURANCE S.A.”

Applicant submits pursuant to Section 120(f) of the Criminal Procedure Code that the Information filed in respect of Counts 3 and 4 did not state with reasonable clearness and failed to give reasonable information as to the time on which the Excess of Loss Reinsurance Contract was uttered. The definition of the word “utter” in Section 4 of the Penal Code includes “using or dealing ...” that is, a tendering, lodging, depositing etc, and having regard to the fact the uttering was said to have been made to a government official, the date of uttering relied should be stated. Mr. Hanson points out that the statement of witness Harry refers to two distinct deliveries – one on 9th June 1997 and the other on 30th June 1997. Learned Counsel submits the time as stated is ambiguous, and should be specified. Counsel relies on two case authorities: Johnson v. Miller [1937] HCA 77; (1937) 59 CLR 467 at 497 per Evatt J and Walsh v. Tattersall [1996] HCA 26; (1996) 188 CLR 77, 109 (per Kirby J.).

Submissions of Respondent

The learned Director submits the appropriate time to challenge for duplicity is when evidence is adduced, not at this point of time. He submits too that there is no ambiguity concerning the information and time stated in the particulars.

Learned Counsel also pointed out that Section 252 of the Criminal Procedure Code couldn’t be utilized for the purpose of quashing Counts 3 and 4.

The Issues

The issue before this Court in essence is whether the information and time stated are sufficient pursuant to Sections 117 and 120(f) of the Criminal Procedure Code.

Section 117 provides:

“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

Section 120(f) provides:

“subject to any other provisions of this section, it shall be sufficient to describe any place, time, thing, matter, act or omission whatsoever to which it is necessary to refer in any charge or information in ordinary language in such a manner as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to;”

Application

Learned Counsel Mr. Hanson submits different defences may apply depending on the date relied on for the alleged utterance to have been committed. It is important therefore the time is stated with reasonable clearness. I agree. The Information as worded contains a latent duplicity. The evidence of witness Harry does indicate there may be two possible dates, 9th June 1997 or 30th June 1997. If not, and only the date of 9th June 1997 is relied on then it should be specified. If two or more possible dates are relied on, then that amounts to duplicity. It implies the commission of two or more separate offences of uttering. An Information is not permitted to contain two or more separate offences (Archbold Criminal Pleading Evidence and Practice, Forty-Third Edition Vol 1 at paragraph 1-57; see also the case authorities Johnson v. Millar [1937] HCA 77; (1937) 59 CLR 467 at 497 per Evatt J and Walsh v. Tattersall [1996] HCA 26; (1996) 188 CLR 77, 109 (per Kirby J.) relied on by learned Counsel for the Applicant). Counts 3 and 4 accordingly should be amended failing which they should be quashed.

ORDERS OF THE COURT:

1. Quash Count 1 of the Information filed on 7th November 2001.
   
2. Counts 3 and 4 to be amended by describing with reasonable clearness the time on which alleged document was uttered, failing which both Counts are to be quashed.
   

THE COURT