Public Prosecutor v Raymond [2007] VUCA 6; Criminal Appeal Case 01 of 2007 (5 April 2007)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Criminal Appeal Case No. 01 of 2007

BETWEEN:

THE PUBLIC PROSECUTOR
Appellant

AND:

KRISH RAYMOND
SHARON KUMAR
Respondents

Coram: Hon. Justice Vincent Lunabek, Chief Justice
Hon. Justice Bruce Robertson
Hon. Justice Oliver Saksak
Hon. Justice Christopher Tuohy
Hon. Justice John Mansfield

Counsel: Mr. Lent Tevi for the Appellant
Mr. Jack Kilu for Respondents

Date of Hearing: 28th March 2007
Date of Judgment: 5th April 2007

JUDGMENT

This is an appeal by the Public Prosecutor against the decision of the Supreme Court dated 12th January 2007 in Criminal Case No. 72 of 2005: Public Prosecutor v. Salendra Sen Sinha, Krish Raymond and Sharon Kumar.

Three defendants were charged separately as follows:-

1. Salendra Sen Sinha faced one count of unlawful possession and issuing of designed paper notes resembling currency notes issued by the Reserve Bank of Vanuatu. The charge was laid under section 17 of the Reserve Bank Act Cap 125.

2. Krish Raymond faced one count of aiding Salendra in the commission of the offence of unlawful possession and issuing of fake notes. The charges were laid under section 30 of the Penal Code Act Cap 135 in conjunction with section 17 of the Reserve Bank Act.

3. Sharon Kumar faced the same charge as Krish Raymond laid under section 30 in conjunction with section 17 of the Reserve Bank of Act.

All three pleaded not guilty to the charges and the matter proceeded to trial before Bulu. J on 3rd August 2006.

At the end of the prosecution case, Mr. Kilu made a no case to answer submission. In his decision of 12th January 2007 the trial Judge reached the conclusion that Salendra had a case to answer and was required to make a defence. However, the Judge found there was insufficient evidence to require the two (2) other defendants, Krish Raymond and Sharon Kumar to make their defences and found them "not guilty" pursuant to Section 164 (1) of the Penal Code Act.

The Public Prosecutor appealed pursuant to her powers under section 200 (4) of the Criminal Procedure Code Act Cap.136

Two grounds of appeal were advanced:- (a) that the ruling of the trial Judge was against the weight of the evidence, and (b) that he had failed to take into account significant portions of the evidence led by the prosecution at the trial.

The appellant relied on the written submissions and the response to the respondent’s submissions filed on 27th March in support of the two grounds of appeal.

The appellant led evidence at trial to show a joint criminal enterprise between all the three defendants. The following facts were said to contribute to that necessary inference of guilt:-

(a) The defendants and a fourth person who was no longer before the Court had traveled from Fiji to Port Vila on 21st October 2005. They all booked into the Hibiscus Motel for one night. On 22nd October they checked into a two bedroom unit at the Holiday Motel where they lived together until 22nd November 2005.

(b) Salendra had made inquiries for the purchase of a colour photocopier in the company of the appellants in late October 2005.

(c) A photocopier was seen by Mr. Alan and Mrs. Margaret Elvidge of the Holiday Motel in Unit 5 where the defendants were staying on 7 November 2005. When the defendants had left unexpectedly and without properly checking out, the equipment was recovered from their litter bin.

(d) A large number of counterfeit VT 5,000 notes were passed at several locations in Port Vila from 4th -6th November 2005 including El Gecko, Trader Vics, Island Chicken and Au Bon Marché at Man Ples area. At these outlets, the defendants were seen purchasing with VT 5.000 notes on each purchase they made and did not use change given to them in earlier transactions.

On these facts the Public Prosecutor laid charges of aiding the commission of unlawful possession and issuing of counterfeit notes against the two respondents.

Mr. Kilu submitted that the appeal should be dismissed with costs for the following reasons:-

(a) The grounds of appeal were vague and ambiguous

(b) The trial Judge was correct in finding that as a matter of law, there was no evidence upon which the respondents could be convicted so as to require them to make defences.

(c) The trial Judge had found that there was no evidence directly linking the respondents to the offences with which they were charged.

(d) There was no evidence showing that the respondents were knowingly in possession of counterfeit notes and were knowingly issuing them.

(e) The charges against the two respondents were irregular and defective.

In considering these issues the Court examined the charges in the light of the legal provisions alleged to have been contravened and against the evidence adduced by the prosecution.

First the charges against the respondents were framed as follows:-

"Count 2

STATEMENT OF OFFENCE

AIDING COMMISSION OF THE OFFENCE OF UNLAWFUL POSSESSION AND ISSUING OF DESIGN PAPER NOTES WHICH RESEMBLES CURRENCY NOTES ISSUED BY THE CENTRAL BANK contrary to section 30 of the Penal Code Act Cap 135 and section 17 of the Central Bank of Vanuatu Act Cap 125.

PARTICULARS OF OFFENCE
RAYMOND KRISH (also known as RAMON KRISH) permanent resident and citizen of Fiji Islands, sometime on 4th November at Island Chicken Take Away and on 5th November 2005 at Trader Vics Night Club in Port Vila you aided by obtaining from and issuing notes from Salendra Sen Sinha also from Fiji Island who had in his possession and issue designs in paper the prints of which resemble the whole currency notes of Vatu Five Thousand (VT 5,000) without obtaining the consent of the Central Bank of Vanuatu (the Reserve Bank).

Count 3

STATEMENT OF OFFENCE

AIDING COMMISSION OF THE OFFENCE OF UNALWFUL POSSESSION AND ISSUING OF DESIGN PAPER NOTES WHICH RESEMBLES CURRENCY NOTES ISSUES BY THE CENTRAL BANK contrary to section 30 of the Penal Code Act Cap 135 and section 17 of the Central Bank of Vanuatu Act Cap.125

PARTICULARS OF OFFENCE

SHARON KUMAR you are a permanent resident and citizen of Fiji Island, sometime on 5th November 2005 at El Gecko Takeaway you aided by obtaining from and using currency notes from Salendra Sen Sinha also from Fiji Islands who had in his possession and issue designs in paper the prints of which resembles the whole currency notes of vatu five thousand (VT 5,000) without obtaining the consent of the central Bank of Vanuatu (the Reserve Bank)"

Section 30 of the Penal Code Act states:

"Any person who aids, counsels or procures the commission of a criminal offence shall be guilty as an accomplice and may be charged and convicted as a principal offender".

Section 17 of the Central Bank Act Cap 125 states:-

"

(1) The Central Bank shall have the sole right of issuing currency notes and coin for, on behalf of, and throughout, Vanuatu, and no other person shall issue currency notes, bank notice or coins or any documents or tokens payable to bearer on demand being documents or tokens having the appearance of currency notes or coin. Nor shall any person without the prior written consent in writing of the central bank, produce or be in possession of, for any reason any thing or design which bear words, figures, letters, marks, lines, or devices the print of which resembles in whole or in part currency note or coin issued by the Central Bank.

(2) Any person who contravenes this Section shall be guilty of an offence and liable on conviction to a fine of VT 140,000 or to imprisonment for 7 years or to both ."

The Central Bank Act No. 3 of 1980 has been amended several times but the relevant amendment is Act No. 7 of 1989. By that Act, among other things, the Central Bank had a change of name to Reserve Bank.

In view of this amendment the Public Prosecutor should have used the word ‘Reserve Bank of Vanuatu’ or the ‘Reserve Bank’ in Counts 2 and 3 and their respective particulars against the two respondents.

However Section 17 of the Reserve Bank of Vanuatu Act 1980 (as amended) was not intended to cover or apply to offending of the nature alleged against the respondents. This became apparent when the Court asked Mr. Tevi to explain what was meant by the word ‘issuing’ in the charges, to which Mr. Tevi replied that it meant simply handing out or the passing of counterfeit notes by a person in possession of that note to another person. In truth ‘issuing’ in this section means creating for circulation as currency and not uttering.

It became apparent also that the relevant provision under which proper charges should have been laid was section 142 of the Penal Code Act Cap 135. It states:-

"COUNTERFEIT CURRENCY

142. No person shall –
     

(a) counterfeit or debase any current coin or bank note;

(b) import any such counterfeit or be based current coin or bank note;

(c) knowingly utter any such counterfeit or debased coin or bank note;

(d) without lawful authority manufacture or knowingly possess any instrument, apparatus or other material whatsoever designed or intended for counterfeiting any note or coin.( emphasis by underlining added)

Penalty: Imprisonment for 15 years

Going through the evidence presented by the prosecution witnesses before the trial Judge, it is apparent that had the charges been framed under Section 142 (c) of Cap 135, the trial Judge would have arrived at a different conclusion. That is clear from his findings at paragraph 48 in the last sentence when he said:-

"...Had the charges been for possessing and issuing of counterfeit notes that would have been a different matter altogether. However that is not the case" Similarly at paragraph 52 of the Decision, the trial Judge said this in the second sentence:-

"...If she had been charged with possession and issuing of fake money resembling that which is issued by the Reserve Bank, that in my view would have been an entirely different matter altogether".

Having reached his conclusion, it was open to the trial Judge to hold as a matter of law that there was insufficient evidence against these two respondents to require them to make a defence to the charges of aiding and abetting Salendra under section 17 of the Reserve Bank Act and therefore he was entitled to pronounce them ‘not guilty’

Parliament has given the power to amend a charge where it is defective under section 139 of the Criminal Procedure Code Act Cap 136. It is however a power limited only to the Magistrate’s Court. The power is not granted to the Supreme Court and Parliament might consider an amendment which would permit it to occur.

As the law stands there is a lack of jurisdiction to amend the charge even though the trial Judge had found evidence of possession and uttering of counterfeit notes by the Respondents.

There was also a problem that the charges were duplicitous and had the trial proceeded, the prosecutor would have had to make an election between possession and issuing.

We are however satisfied that the Judge did not err in reaching the conclusion that he did. The wrong charges were laid and inappropriately framed.

Accordingly this Court upholds the orders of 12 January 2007 and dismisses the appeal. There will be no order as to costs.

There is no barrier to the Respondents now being charged with the appropriate offending under the Penal Code Act. Whether they are charged is a matter in the discretion of the Public Prosecutor. This matter has been complicated by charging the Respondents as parties to the offending of Salendra Sen Sinha. Bulu J found that these current Respondents were each in possession of counterfeit and knowingly using it (which in law is uttering). They could each be charged quite separately as principal offenders and if convicted their degree of culpability would be reflected in sentence.

DATED at Port Vila this 5th day of April, 2007

BY THE COURT

Hon V.Lunabek CJ
Hon. J.B. Robertson, J
Hon. O. Saksak, J
Hon. C. Tuohy, J
Hon. J. Mansfield, J