Regina v Firilanga [2020] SBMC 5; Criminal Case 18 of 2018 (21 February 2020)

IN THE MALAITA DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT AUKI )
(Criminal Jurisdiction)

Criminal Case: 18 of 2018

REGINA
-v-
FESTUS FIRILANGA
[Deft]

&

Dates of trial: February 4^th, 2020 – February 7^th 2020
Date of written closing submissions: February 7^th, 2020 (Defence submission)
Date of Judgment: February 21^st, 2020

Mrs. Rachel Olutimayin and Jonathan Auga for the Crown
Ms. Cathy. S. Hite for the Accused

JUDGMENT

Introduction

1. The trial for defendant – Festus Firilanga ensued after he entered not guilty plea to a count of Forgery of any document, which is not made felony under this or any other Act for the time being in force, if committed with intent to defraud contrary to section 341 (1) of the Penal Code (Cap. 26).
   
2. The charge arise out of an incident which alleges that the Defendant did forge a document namely summary of findings/ decision by chiefs on Form LC Civil 3 of the Local Court Act (Cap 46) with intent to defraud persons namely, Mr. Foo Kuek Kiong and Mr. Sibriano Rifalea.
   

Crown’s case

3. The Crown case is that a hearing was conducted by four (4) Chiefs from Subea and Dala House of Chiefs on 5^th May 2011. The hearing was in relation to a dispute between the defendant and another person.
   
4. The crown says that after the hearing the presiding chiefs (4) handed down a decision. The decision of the Chiefs was recorded and duly signed on the usual Customary Court Form LC Civil 3 and was circulated to parties.
   
5. On 5^th or 6^th May 2011, a forged version of the decision entered by the Chiefs on Form LC Civil 3 emanated or emerged from the defendant.
   
6. In September 2011, and April 2012 letters were written by Solicitor on behalf of the defendant and addressed to Mr. KIONG, (Contractor who leased the land that was subject of the hearing. Both letters were handed over to Mr. Rifalea, the Licensee.
   
7. In the letters to Mr. KIONG the writer directed him to pay anchorage money for shipment from Kware’e harbor to the defendant, the letter also notified him that the defendant had been declared by the Chiefs to be the custom owner of the harbor. Forged versions of the Form LC Civil 3 handed down by the Chiefs on 5^th May 2011 were attached to the letters sent to Mr. KIONG by the defendant’s solicitor.
   
8. A forged version of Form LC Civil 3 was also attached to an appeal against the decision made by the Chiefs on 5^th May 2011, lodged by the defendant in the Local Court on 1^st August 2012.
   

Allegation Denied

9. The Defendant was arrested, charged and brought to Court. He denied this allegation. Thus, the Crown called Five (5) witnesses to prove their case against the defendant. The witnesses were Lonsdale Aba (PW 1), Gabriel Lasumani (PW 2), Reginald Ilawane (PW 3), Rex Ramoga (PW 4) and Sibriano Rifalea (PW 5).
   

Documents tendered by consent and marked as Exhibits

10. The following documents were tendered by Crown through the Complainant with consent of Defence which forms part of the evidence in this proceeding;
    1. (PE 1) Letter dated 13^th April 2011, purportedly written by Festus K Firilanga – subject: Kwarae Harbor Excluded without any Court records.
       
    2. (PE 2) Letter dated 20^th April 2011, purportedly written by Festus K Firilanga – subject: Sea way – Kwaree Harbor.
       
    100. (PE 3) Letter dated 2^nd May 2011, purportedly written by Rex Ramoga – Subject: Kwaree seaway and Harbor Dispute.
    4. (PE 4) Hand written copy of ‘Decision of Chief’s’ dated 5^th May 2011 and signed by Joseph Gofi.
       
    5. (PE 5) Unaccepted Settlement Form (Form LC Civil 3) dated 5^th May 2011 and signed by Gofi. Attached with typed copy of the ‘Chief’s Decision’ dated 5^th May 2011 and signed by all the Four (4) Chiefs.
       
    6. (PE 6) Application for Service Message (SIBC) dated 25^th May 2011, From Festus Kafogwarii to Sipriano Rifalea, New Joint Venture Logging Company.
       
    7. (PE 7) Letter dated 30^th May 2011, written by PSO lawyer, Allan Tinoni on behalf of Festus Kafogwarii F – Subject: Payment for Kwaraeé Harbor. Attached to it an unaccepted settlement form dated 5^th May 2011 with blank summary of findings.
       
    8. (PE 8) letter dated 7^th September 2011, written by PSO lawyer, Allan Tinoni on behalf of Festus Kafogwarii F, to Mr. Wong of OTC Company – Subject: Payment of Archorage $150,000.00 (3) shipment-kwareé habour. Attached to it an Unaccepted Settlment Form (Form LC Civil 4) between Festus Kenileana –v- J. Formani.
       
    9. (PE 9) letter dated 12^th September 2011, written by Makario Tagini of Global lawyers on behalf of Sipriano Rifalea in response to letter dated 7^th September 2011 by Allen Tinoni of PSO.
       
    10. (PE 10) letter dated 16^th April 2012, written by PSO lawyer, Allan Tinoni on behalf of Festus Kafogwarii F, to Manager of OTC Company limited – Subject: Payment of Access and Anchorage Fee of Kwareé Harbor. Attached to it an Unaccepted Settlement Form (Form LC Civil 3) dated 5^th May 2011, between Festus K. Kafogwarii -v- Sybriano Rifalea and with complete summary of findings. Attached to it is a typed ‘Chiefs Decision’ of Subea and Dala House of Chiefs, dated 6^th May 2011.
        
    11. (PE 11) letter dated 1^st August 2012, by Local Court Officer (ag) Mr. Hillary D. Fioru and addressed to Sibriano Rifalea – Subject: Kware Harbour Dispute: Case No. 10 of 2012. Festus Kafogwarii -v- Yourself & Jezmiel Formani. Copy of referral grounds, Unaccepted Settlement form and typed Chief’s decision dated 6^th May 2011 is attached to it.
        
    50. (PE 12) Statement of Joseph Gofi made on 22^nd May 2012 and attached with a further letter by Joseph Gofi dated 16^th September 2012.
        

Definition of Forgery and False Document

11. Section 333 (1) to (3) of the Penal Code (Cap. 26) defines ‘Forgery’ as: -

“(1) Forgery is the making of a false document in order that it may be used as genuine, and in the case of the seals and dies mentioned in this Part of this Code the counterfeiting of a seal or die, and forgery with intent to defraud or deceive, as the case may be, shall be punishable as provided in this Part of this Code.

(2) It is immaterial in what language a document is expressed or in what place within or without Her Majesty's dominions it is expressed to take effect.

(3) Forgery of a document may be complete even if the document when forged is incomplete, or is not or does not purport to be such a document as would be binding or sufficient in law.”

12. Section 334 (1) (a) –(c) & (2) of the Penal Code (Cap 26) defines ‘False Document’ as: -

“(1) A document is false if the whole or any material part thereof purports to be made by or on behalf or on account of a person who did not make it nor authorise its making; or if, though made by or on behalf or on account of the person by whom or by whose authority it purports to have been made, the time or place of making, where either is material, or, in the case of a document identified by number or mark, the number of any distinguishing mark identifying the document is falsely stated therein; and in particular a document is false-

(a) if any material alteration, whether by addition, insertion, obliteration, erasure, removal, or otherwise, has been made therein; or

(b) if the whole or some material part of it purports to be made by or on behalf of a fictitious or deceased person; or

(c) if, though made in the name of an existing person, it is made by him or by his authority with the intention that it should pass as having been made by some person, real or fictitious, other than the person who made or authorised it.”

(2) A document may be a false document for the purposes of this Part of this Code notwithstanding that it is not false in any such manner as is described in subsection (1) of this section.

Intention to Defraud

13. Section 335 of the Penal Code (Cap. 26) explains ‘Intent to defraud’ as: -

“An intent to defraud is presumed to exist if it appears that at the time when the false document was made there was in existence a specific person ascertained or unascertained capable of being defraud thereby, and this presumption is not rebutted by proof that the offender took or intended to take measures to prevent such person from being defraud in fact, nor by the fact that he had or thought he had a right to the thing to be obtained by the false document.”
Defence case

14. It became apparent during trial and from the defence propositions that the existence of two decisions; (i) Dated 5^th May 2011 and (ii) Dated 6^th May 2011, is undisputed. It is strongly denied that the defendant made the false document or had any intent to defraud the complainants.
    
15. The Defence put the crown on strict proof.
    

Burden of Proof in Criminal Trials

16. It is settled law that the burden of proof in every criminal trial or case rest squarely in the prosecution, and that is to prove their case on the required standard “Beyond Reasonable Doubt”. Should they discharged their duty to the required standard then the Court is bound to find the Defendant guilty as charged and be convicted forthwith. However, should there be doubt, slight as it may, the Defendant must be given the benefit of the doubt and shall forthwith be acquitted of the charge.
    
17. The Defendant is not required to prove anything, he is never required to prove his innocence.
    

The Law on Circumstantial Evidence

18. The law on circumstantial evidence has been well enunciated by law writers around the world and several case precedents in this jurisdiction. Circumstantial evidence is evidence from which the desired conclusion may be inferred or drawn by a tribunal of fact that is to conclude that there are no other possible hypothesis available that would affect the inference.
    
19. In Archbold, 42^nd Edition, Para 9-10 it says:

“...and where such testimony is not available, the jury are permitted to infer from the facts proved other facts necessary to complete the relevance of guilt, or establish innocent. It must always be narrowly examined. If only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of the accused guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference”.

20. In the case of R v Duddley Pongi,^[1] Muria CJ (as he then was) stated at page 5:

“The Prosecution Case is substantially based on circumstantial evidence. As such the Court must be very cautious when considering the case as presented against the accused. It is the duty of the Court in such as case to consider all the evidence together at the conclusion of the case, ensuring that it can only draw an inference of guilty from the totality of the facts which are proved beyond reasonable doubt.

21. In the case of Regina v Tome^[2], the Judge described Circumstantial Evidence and said:

“Circumstantial Evidence is not a different species of evidence. Circumstantial Evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved.”(Shephered v The Queen (990) 170 CRC 573 per Dawson J at 579)’.

Disputed Matters

22. The making of summary of findings/decision by Chiefs on the Unaccepted Settlement Form (Form LC Civil 3) and intention to defraud the complainants are the highly contested matters in this case.
    
23. The presiding Chiefs of Locality (Subea and Dala Council of Chiefs), the land issue in dispute at Chief Hearing, the date of hearing being 5^th May 2011, and parties involved were never an issue at trial.
    

Issues before the Court

24. Whether the Defendant – Festus Kafogwarii Firilanga made the false document, summary of findings/decision by Chiefs on the Unaccepted Settlement Form (Form LC Civil 3) in order that it may be used as genuine document?
    
25. Whether by making the false document the Defendant was in fact intended to defraud the complainants?
    

Evidence adduced during trial

Evidence relating to the truthfulness of the Copy of House of Chiefs Decision

26. PW 1, PW 2 and PW 3, all gave similar accounts to say that the rightful, genuine and truthful Chiefs Decision made and signed by them is the one bearing their original signatures along with Joseph Gofi’s. This agreed Chiefs decision is dated 5^th of May 2011, which is referred to in this judgment as (PE 5).
    
27. During cross-examination, they all maintain their version and affirmed that their signatures were on the typed decision dated 5^th May 2011 (PE 5).
    
28. While I acknowledge the inconsistencies in their evidences, I accept that they all affirmed and maintained their knowledge to recognize their signatures and the contents of the decision they made. This part was never challenged and contradicted all throughout, hence, I accept them in its entirety.
    
29. These evidences point to prove that the genuine Chiefs Decision made by the Subea and Dala Council of Chiefs between the Festus K Firilanga -v- Sibriano Rifalea is the one dated 5^th May 2011 or attached in PE 5.
    

Evidence relating to when the decision was delivered to parties

30. PW 1, PW 2 and PW 3 gave contradicting evidences to explain the date the decision was delivered and whether it was made verbally or in written form.
    
31. While all of them agreed that they signed the typed decision dated 5^th May 2011, in favor of the complainant– Mr. Sibriano Rifalea and his tribe, there were contradicting evidences as to whether a verbal decision was initially delivered to parties or the typed decision.
    
32. PW 5 (Complainant – Mr. Sibriano Rifalea), gave evidence that the Council of Chiefs did not deliver any verbal decision or written decision on the 6^th of May 2011, for reason that there was an argument between parties on that said date, hence, they were instead being advised that parties will only receive the written copy of decision a week later.
    
33. PW 5, further gave evidence that the copy of the hand written decision dated 5^th May 2011, signed by Joseph Gofi (Secretary) was the first decision he received (PE 4). It was provided to him by his family members at home who informed him that Mr. Joseph Gofi delivered it on 7^th May 2011, at his home while he was away. He also said that a week later Gofi returned to his home and delivered the typed decision dated 5^th May 2011, along with an Unaccepted Settlement Form (Form LC civil 3) that has a blank summary of finding/decision (PE 5).
    
34. Interestingly, there were no evidence relating to when those particular documents or decision were served or delivered on the Defendant. The statement of Joseph Gofi made on the 22^nd May 2012 (PE 12) is also silent. So, whether the Defendant received the decision dated 5^th May 2011, is a matter stand undisclosed all throughout the trial.
    
35. During cross-examination, the evidences of PW 1, PW 2 and PW 3 were further contradicted, hence, I wish not to place weight on their evidences to prove this part, instead lean on the evidence of PW 5, for reason that he is not shaky and gave a consistent and coherent evidence regarding the delivery or service of decision dated 5^th May 2011.
    

Evidence pointing to the existence of Chiefs decision dated 6^th May 2011

36. The Chiefs Decision dated 6^th May 2011, came into existence or being during the letters of correspondence by Counsel Allan Tinoni of Public Solicitors who in those letters appeared to write on instructions for the Defendant. These letters were appeared to be addressed to Mr. Wong of OTC Company and Joint Venture Company Limited, claiming anchorage fees and other fees.
    
37. PE 10, further actually attached the Chiefs decision dated 6^th May 2011 to the letter by counsel Tinoni to Manager OTC Company Limited. Also, in the application for service message to the SIBC on 25^th May 2011 (PE 6), it referred to Chiefs Decision dated 6^th May 2011 and that the Defendant and his tribe were the winning party.
    
38. All the presiding Chiefs, PW 1, PW 2 and PW 3 gave evidences in Court to deny their knowledge on the typed decision dated 6^th May 2011, and also denied the authenticity of their signatures attached to it. Joseph Gofi also denied this decision when he made his police statement on 22^nd May 2012 (PE 12). They also denied filling the summary of finding/ decision by Chiefs on Unaccepted Settlement Form (Form LC civil 3), that is to say, that one which reflects Chiefs decision dated 6^th May 2011.
    
39. There were no direct proposition by the defence to deny the existence of the Chiefs decision dated 6^th May 2011 and the filled summary of finding/ decision on the Unaccepted Settlement Form (Form LC civil 3). It was also unchallenged that the Defendant sought legal assistance from the Auki Public Solicitors Office and that Counsel Tinoni wrote those letters on his instructions. Accordingly, I am incline to infer that the only rationality is that those letters and matters referred to in them were done on instructions by the Defendant to Counsel Tinoni.
    
40. The Chiefs decision dated 6^th May 2011, and the filled summary of finding/ decision on Unaccepted Settlement Form (Form LC civil 3) were strongly opposed by the presiding Chiefs – PW1, PW 2 and PW 3. I find that these two said documents are unsupported, not true and are product of forgery. These two documents emanated or emerged from the Defendant.
    

Truthfulness, Credibility and reliability of Crown Witnesses

41. The evidences of PW 1, PW 2 and PW 3 are accordingly discarded, except for the part of which they had affirmed their signatures on the decision dated 5^th May 2011, and their knowledge towards its finding to be the correct and truthful document. The basis for disregarding other parts of their evidences is that they mostly confusing and vague. It has become apparent that they had forgotten most part of the events on 5^th May 2011. This could possibly because of the lapse of time and the number of Chiefs Hearing they had conducted after 2011. Therefore, unsafe for the Court to place weight on.
    
42. For PW 4, his evidence is totally unclear and irrelevant as well. Hence, I rule it out in its entirety.
    
43. I had considered PW 5, as straightforward, honest and reliable witness, hence, adopt his evidence to support my finding in this judgment.
    

Did the Defendant made the false document – Chiefs Decision dated 6^th May 2011 and filled the summary of finding/ decision on Unaccepted Settlement Form (Form LC civil 3) as opened by the Crown?

44. There were no direct evidence which might point to suggest that the Defendant made the false summary of findings/decision of Unaccepted Settlement Form (Form LC civil 3), to reflect the forged decision dated 6^th May 2011. The Crown only relied on circumstantial evidences to draw inferences. The main basis is that the forged documents emanated or emerged from the Defendant.
    
45. The defence strongly argued that there are other possibilities open for the Court to consider and draw inferences from the existence of the forged Chiefs decision dated 6^th May 2011 and filled summary of finding/ decision on Unaccepted Settlement Form (Form LC Civil 3). Counsel Hite argued that just because it emerged from the Defendant, it does not point to one reasonable conclusion or hypothesis that the Defendant did make this false document. He could have received this forged document from another person or the Secretary of Subea & Dala Council of Chiefs.
    
46. Again, there were no evidence to state or suggest that he was served with the correct decision dated 5^th May 2011, so as to negate the possibility of him receiving the forged Chiefs decision dated 6^th May 2011, from the secretary or another third person as submitted by defence.
    
47. The Defendant could not have known about the correctness or truthfulness of the Chiefs decision dated 6^th May 2011, because there were no verbal decision on 5^th or 6^th May 2011 as well. Obviously, it is possible he might took the impression that decision dated 6^th May 2011, was the correct decision.
    
48. Furthermore, as opened by the Crown and on the face of the charge against the Defendant, it was alleged that he forged the document between 5^th May 2011 and 6^th May 2011, however, the evidence of ‘PW 5’ which the Court had accepted and placed weight on suggested that parties could not have received this document on these said dates. ‘PW 5’ said that parties were advised that the written copies will be served on them the week ahead of hearing and he received the hand written version of decision (PE 4) on 7^th May 2011.
    
49. PW 5 received the typed decision dated 5^th May 2011 and Unaccepted Settlement Form (Form LC Civil 3) a week after the hearing.
    
50. There were no evidence to suggest that the Defendant had been served with a copy of the correct Chiefs decision to assist any possible inference on his part to forge these documents on 5^th or 6^th May 2011. As it stands, it is open to other possibilities. Therefore, I can only conclude that any making of false document as submitted by the Crown would‘ve been impossible to happen on these dates. This is a gap and doubt remained open all through the trial.
    

Filed referral to Local Court by the Defendant (PE 11)

51. On the 1^st of August 2012, the Defendant filed a referral to the Local Court and sought orders that the Local Court nullify the Chiefs decision dated 6^th May 2011 on the basis of fraud or that it was not done by the Chiefs, and in its place be replaced with the Chiefs decision dated 5^th May 2011 as the proper one which should be uphold.
    
52. This referral document also raises possibilities that does not point to the Defendant being the maker of the false decision dated 6^th May 2011. It could infer that he was trying conceal the act of forgery, or could equally infer he honestly found out that the 6^th May 2011 decision was a subject of forgery, as such properly refer the 5^th May 2011 to Local Court as an aggrieved party to properly rectify the issue.
    

Usual Procedure when preparing decisions by Chiefs Panel

53. The Complainant being a paramount Chief does not automatically make him a member of Council of Chiefs, this submission as contended by defence counsel is misconceived and be discarded forthwith. Hence, coercing the other Chiefs to make a decision according to his wish is an unfounded argument which should never be raised.
    
54. I take judicial notice that decisions made by Chiefs are normally delivered verbally before the typed or hand written copy is provided to parties. When the typed or hand written copy is to be delivered depends on the accessibility to resources and facilities.
    
55. The Chiefs normally discuss the case after hearing and come up with an agreed decision, that decision will normally be delivered verbally to parties, but on occasion be reserved until the written decision is delivered.
    
56. The date of decision will always be the date they agreed to it and finalized it, normally the day of hearing or the day they finalized it and issued a verbal decision.
    
57. An Unaccepted Settlement Form is not a Chiefs decision, it is a form under the Local Courts Act to be filled and completed by aggrieved parties who wish to refer the matter to the Local Court. Winning party should never receive this form nor allowed to file this form with the Local Court, only aggrieved party.
    
58. The unaccepted settlement form is normally filled by parties according to a Chiefs decision and should always attached with that Chiefs Decision on a separate paper or within its summary of findings/ decision.
    

HELD:

59. I have carefully and thoroughly considered the circumstantial evidences the Crown relies on pertaining to the charge of Forgery^[3], and I found there is some reasonable doubt to link the Defendant to the making of the false document and the date of making the false document. Being in possession of the false document is not enough. There must be some evidences that links and connects to the criminal act as alleged, and that evidence must be proved beyond reasonable doubt.
    
60. I do not find that there is any proof of fact beyond reasonable doubt that lead reasonably to one and the only conclusion, that the Defendant did fully responsible for committing the forgery offence as charged. I therefore find the Defendant not guilty, hence, acquit him forthwith of the charge.
    

Orders

1. Find the Defendant not guilty of the Charge of Forgery contrary to section 341 (1) of the Penal Code (Cap. 26).
2. The Defendant is hereby acquitted of Forgery charge.
3. Right of Appeal applies within 14 days of this judgment.
   

THE COURT

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MR. LEONARD. B. CHITE

Principal Magistrate

Malaita District Magistrates Court

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^[1] (Unrep. Criminal Case No. 40 of 1999)
^[2] [2004] SBHC 115; HC-CRC 259 of 2003 (2 April 2008)
^[3] Penal Code (Cap. 26), Section 341 (1) Forgery of any document, which is not made felony under this or any other Act for the time being in force, if committed with intent to defraud.