Public Prosecutor v Wilkins [2003] VUSC 66; Criminal Case No 035 & 038 of 2003 (11 November 2003)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No 35 & 38 of 2003

PUBLIC PROSECUTOR

-v-

STEWARD WILKINS
SIAKA WILLIE

Mr. Tevi for Public Prosecutor
Mr. Toa for 1st and 2nd Defendant

ORAL DECISION

This is a decision on the no case to answer submission made by defence counsel in the trial of PP v Steward Wilkins and Siaka Willie.

In this matter the accused Mr. Steward Wilkins initially faced 17 counts involving theft, forgery and false pretences in a series of activities which occurred between September 2001 and June 2003. Mr. Siaka Willie faced 3 counts of complicity.

A number of the charges in the information were dismissed as witnesses could not be found and accordingly there was no evidence offered and the particular charges or counts were dismissed. They were counts 1, 7, 8, 9, 10, 11, 12, 19 and 20. The last count was in fact against the accused Mr. Siaka Willie involving an allegation of complicity. Clearly as the main charge against Mr. Wilkins had been dismissed, that matter also had to be dismissed.

At the conclusion of the prosecution evidence in relation to the remaining matters, the defence submitted that there was no case to answer in relation to the false pretences charges, namely counts 3, 5, 6, 13, 16, and 18 in that order. It was submitted that the incorrect charges had been laid and that the Prosecutor had been unable to establish the essential ingredients of the charges which had been laid.

Charges in relation to false pretences were laid pursuant to section 125 (c) of the Penal Code Act [CAP 135]. That particular provision provides that no person shall cause loss to another by false pretences. It is section 124 that covers obtaining property by false pretences, which is defined. That section provides that every person obtains property by false pretences who, by a false pretence, that is to say any representation made by words, writing or conduct, of a matter or fact, either past or present, which representation is false in fact, and which the person making it knows to be false, or does not believe to be true with intent to defraud, either directly or indirectly, obtains possession of or title to any thing capable of being stolen or procures anything capable of being to be delivered to any person other than himself. Clearly from the start the prosecution in the present circumstances laid in those terms has a basic fault. The counts are clearly misconceived.

The allegations concern the accused Mr. Steward Wilkins obtaining credit for the use of taxis and hotel accommodation and involved in him obtaining money, but not property as such. Clearly, in the circumstances, the appropriate charges for the activity in which the accused Mr. Steward Wilkins was allegedly involved would more properly have been covered by the provisions of section 127, which is obtaining credit fraudulently. That section provides that no person shall, in incurring any debt or liability, obtain credit by means of any false pretence or by means of any other fraud. That is the appropriate charge for this the case.

However, the Prosecution has elected to proceed under section 125 where loss is caused to another by false pretences. The definition of false pretences involves the obtaining of title to anything capable of being stolen or procuring anything capable of being delivered to any person other than the accused. That is not the instance in the present circumstances and the Prosecution is unable to prove, in my view, the essential ingredients of the charge that has been laid.

When one considers the question of a no case to answer, one must take into account whether or not it is appropriate that the Court continue with the Prosecution in the absence of proof of essential ingredients. As I have said all essential ingredients of the charges laid cannot be proved by the Prosecution in this case.

When a submission of no case to answer is made it can be upheld where, as here, there is no evidence to prove essential elements of the alleged offence, or where the evidence adduced by the Prosecution has been so discredited as a result of cross-examination or where witnesses have been shown to be so manifestly unreliable that no reasonable tribunal could safely convict on it.

Here, it is clear that the Prosecution cannot prove the essential ingredients of the charges as laid. At this stage of the matter which has gone through preliminary consideration by the Magistrates' Court and the accused had been brought to Court and evidence has been adduced on the charges as laid I am not persuaded that it would be appropriate to allow the Prosecution at this late juncture to amend the charges. It has nailed its colours to the mast and now must stand by that decision.

However, even if the correct counts had been laid under S. 127, I am of the view that the Prosecution would have failed to prove the essential element of a false pretence.

In count 3 the false representation involved handing over a false cheque No 600060 but in the absence of any evidence from the owner of the cheque, Mr. James Gistitin, it has not been proved beyond reasonable doubt that the cheque was false.

In count 5 the allegation was that the accused made a false representation that an ANZ withdrawal form was false. That falsity was never proved. Mr. Timbaci said that he went to the bank on 17 June 2003 and could not get any money. He did not say why and there was no evidence from any bank officer as to why that form was false.

In Count 6 Mr. Maslea Scott said that the accused Mr. Wilkins wrote him a cheque for Vt10,000 and on the date of the cheque he went to the ANZ bank and did not get paid out on it, but there was no evidence to say that the cheque was false. Again there was no evidence from any bank official.

In count 13, in the same way, there was no proof beyond reasonable doubt that the withdrawal form was false and Mr. Reuben Jack didn't even go to the bank with the form.

In count 16, while Mr. Wilkins told Mr. Joseph said that he had paid for two trucks, there was no proof offered that he had not so paid and that the representation was accordingly false.

Accordingly, I find that the counts under S. 125 (c) have not been proved and that, even if they had been laid under S. 127 they would not have been proved on the basis of the evidence adduced.

Accordingly, the matters of false pretences which I have referred to in detail cannot stand and they will be dismissed and the accused is accordingly discharged in relation to those matters.

I now propose to hear submissions from the defence and from the Prosecutor as to the remaining charges of forgery.

(Submissions made)

In addition to the counts that I have already referred to, I have now heard submissions in relation to the three counts that involve allegations of forgery. Count 2 is that the accused Steward Wilkin sometime on or about 22 March 2003 at Talimoru Hotel, Vila, intended to make a false document like signing a cheque no. 600060 and wrote an amount of VT20, 000 and gave it to Mr. Frank Bollen to withdraw it at the ANZ Bank. It was alleged that at that time the accused knew it to be false and that he intended it to be acted upon as if genuine. The owner of the cheque was referred to in count 1. He was, even on the basis of the cheque itself, a Mr. James Gestitin. Count 1 was dismissed because there was no evidence from the owner of the cheque. That very reason satisfies the Court that there has been no proof beyond reasonable doubt that the cheque no. 600060 was a false document.

The charge was laid under section 140 of the Penal Code. That provides that no person shall commit forgery. Forgery is defined in section 139 of the Penal Code, and the expression "false documents" means a document as defined by subsection 3(a)(b) (c) and (d). None of those provisions cover the present circumstances. In the absence of the owner of the cheque being available to the Court to give evidence, the Court cannot be satisfied that this accused completed the cheque by way of signing it and by way of filling in his name or the amount of VT20,000.

It is clear that that cheque was given to Mr. Frank Bollen but Mr. Bollen can say nothing that would add to the general evidence. The cheque is clearly not a false document in terms of section 139 (3) and in addition there is no evidence, as I have said, as to its completion by this accused.

During the course of evidence, a policeman, Mr. James Aru, gave evidence as to his interview with the accused. He said that he cautioned the accused who made verbal admissions saying that he admitted what he had done. However, Mr. Aru did not give details of any admissions and it is significant that thereafter the accused, in the only written part of the statement, indicated that he did not want to say anything or make a written statement, but would only speak in Court. Accordingly, the Prosecutor, in relation to count 2, cannot, in my view, call upon any assistance from what the accused might have said to the policeman. There is an inadequacy of detail in relation to the so-called verbal admissions, none of the so-called admissions were taken down in writing, and in addition, there is no detail given of what they were in particular.

Accordingly, I find that the Prosecution has failed to prove the essential ingredient of forgery in accordance with the definition of that term under section 139(1) that is, making a false document, knowing it to be false, with intent that it should in any way be used or acted upon as genuine within the Republic, or that some person should be induced by the belief that it was genuine to do or refrain from doing anything with it.

The other two counts of forgery are contained in counts 4 and 14.

In count 4 it is alleged that sometime on 14 June 2003 at Vila, the accused made a false document knowing it to be false, by filing out an ANZ withdrawal form for an amount of VT10, 000 and giving it to Vanua Timbaci to withdraw it from the bank. That was for a taxi fare that had been allegedly incurred.

Count 14 relates to the accused, sometime on 21 June 2003 at Vila, making a false statement knowing it to be false as filing in an ANZ withdrawal form for an amount of VT60, 000 and giving it to Mr. Reuben Jack to withdraw it from the bank.

Again, I return to the definition of what is a false document under section 139 (3). Here in my view, the Prosecution had not proved beyond reasonable doubt that the withdrawal forms were false documents. It is true that Mr. Timbaci gave evidence that he went to the bank and could not obtain the money by virtue of the withdrawal slip. It is equally true that Mr. Jack did not go to the bank at all to test the veracity of the withdrawal slip that he had been given.

However, while it would have been simple for the Prosecution to call evidence from a bank officer to indicate that the account numbers contained in the slips were not current account numbers or that the accused did not have a current account with the bank or that, if he did have a current account with the bank, that there were insufficient funds in the accounts to make withdrawals of the amounts concern. None of that evidence had been adduced.

The Court cannot be left to speculate. Proof beyond reasonable doubt means that the Court must be sure of the allegations. Without any additional evidence, the Court cannot conclude that the Prosecution has proved beyond reasonable doubt that these documents were false documents. After all the accused is entitled to fill out withdrawal slips for banks and accounts that he owns. He may well have been doing that but again the Court is not here to speculate.

I find in counts 4 and 14 that again the Prosecution has failed to prove the essential ingredient of the charges that the documents were false documents. It is accepted that the accused may have made them but it has not been proved beyond reasonable doubt that they were false documents.

Accordingly, the accused will be discharged on count 4 and 14.

The one remaining count to be dealt with is count 15, which is laid against the accused Mr. Siaka Willie. That is simply framed in this way, that he is guilty of complicity against section 40 of the Penal Code Act [CAP. 135].

The allegation is that the accused sometime on 22 June 2003 at Vila, inside Reuben Jack's taxi aided Steward Wilkins by convincing Reuben Jack that Steward Wilkins was a business man in Santo so that Reuben could give Steward Wilkins money.

Section 30 provides as follows:

"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."

As the defence has quite correctly pointed out, that is not a stand-alone offence section. It simply relates to someone being guilty effectively as a party by virtue of complicity in another crime and in the count as alleged there is no crime alleged save insofar as the words refers to Reuben Jack giving the accused money. No other allegation in relation to a specific offence is set out. It is my view that that count, as it stands, is a nullity.

In any event, even if it were not so, the evidence of Mr. Reuben Jack was that Mr. Willie stopped his cab, got in and said to him to please pick up a friend of mine who is a business man from Santo who was going to conduct some business and who will be driving around to do so. The evidence was that Mr. Siaka Willie remained in the cab from 8am to 2pm on the day in question. There was no evidence that he did anything else. There was no evidence from the witness that Mr. Willie knew that Mr. Jack would be convinced that he should give money to Mr. Wilkins or that knowledge could be imputed to him beyond reasonable doubt. But in any event, as I have said, that relates to the merits of the claim, if there was one. It is clear that the allegation is insufficient.

It is my view that the count is a nullity. It does not set out what the criminal offending is, or what the offence as alleged is, under any particular subsection. Simply to say that the actions were carried out so that Reuben Jack could give the other accused money is insufficient. That count will be dismissed and the accused is discharged.

It follows that, in accordance with Section 164 (1) of the Criminal Procedure Code [CAP. 136], as a matter of law there is insufficient evidence on which the two accused can be convicted and the verdicts are not guilty on all counts.

I indicate to each of the accused that as the charges, for the reasons I have given, cannot stand, you will be discharged on all of them. However, you in particular Mr. Wilkins must realise that the particular complainants in these cases still have rights of civil action against you for recovery of monies expended or lost by them as a result of non payment of hotel bills, non payment of taxi hire and monies advanced to you and not returned. So the matter really as a matter of law does not end against you today. You may well still be sued on a civil basis for recovery of those amounts, which it is clear from the evidence, have not been paid back. It may well behove you to make suitable arrangements as soon as possible to repay those monies to those people.

Dated AT PORT VILA, this 11^th day of November 2003

BY THE COURT

P. I. TRESTON
Judge