Public Prosecutor v Adams [2008] VUSC 14; Criminal Case 73, 74 of 2007 (15 April 2008)

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

Criminal Case No. 73 of 2007
Criminal Case No. 74 of 2007

PUBLIC PROSECUTOR

-V-

LOPEZ ADAMS
SANDIE LEO

Coram: Justice C. N TUOHY

Date of Hearing: 1, 2, 3, 4, 7, 8, 9, 10, 11, April 2008
Date of Decision: 15 April 2008

Counsel: Ms. Tavoa for Public Prosecutor
Mr. Toa for Defendants

ORAL JUDGMENT

1. These informations were tried together by consent of all parties. The two informations are linked in that each relate to a specific Government cheque issued in favour of Sportz Power the business of Lopez Adams, which the prosecution says was altered by a man known as Salendra Sen Sinha to show a much greater sum payable than when the cheque was originally issued.
   
2. The first information in criminal case number 73 of 2007 relates to cheque number 2154358 which was originally made for a sum of VT78.500. In its amended form the information contains 3 counts, all against Lopez Adams. Count 1 is "Complicity to Commit forgery". The particulars of it are that between the 15th June 2007 and the 18th June 2007, Lopez Adams aided Salendra to make a false document, namely a Government of Vanuatu cheque number 2154358, by making a material alteration to the document with intent that it be acted upon as genuine.
   
3. Count 2 is a charge of altering a forged document contrary to Section 141 of the Penal Code Act. The particulars are that on 19th June 2007, Lopez Adams knowing that a document namely a Government of Vanuatu cheque number 2154358 was forged, dealt with the document as if it were genuine.
   
4. The third and final count in this information is one of obtaining money by deception against Section 130(B) of the Penal Code Act. It provides that on 19th June 2007, "You, Lopez Adams dishonestly obtained cheque 2154358 in the amount of VT 8.760,000 and deposited it in the Sportz Power account to which you personally have access in the ANZ bank of Vanuatu at Port Vila, knowing that you are only entitled to VT78.500".
   
5. The second information in Criminal case 74 of 2007 contains 7 counts. It relates to cheque 2154925 originally for VT7.500. The first count is against Lopez Adams and the other six against Sandie Leo. The first count is another count of complicity to commit forgery and is in the same terms as count 1 of the first information I have mentioned except it relates to a different cheque number 2154925 and a different date, namely between 1st June 2007 and 4th July 2007. The second count is the same as count 2 in the first information, except it relates to Sandie Leo and of course relates to a different cheque number, 2154925 and the date is the 3rd July.
   
6. The third count is against Sandie Leo and it is a count against Section 130 B of obtaining money by deception. And again it is in similar terms to count 3 of the first information except it is against Sandie Leo. The date is the 3rd July 2007, the cheque is 2154925 in the amount of VT9.895.000 deposited to Sandie Leo’s personal account at the National Bank of Vanuatu.
   
7. The other 4 counts are counts of obtaining property by false pretences against Section 125 (c ) of the Penal Code Act and they alleged that Sandie Leo obtained amounts represented in 3 cases by cash withdrawals and in one case by a transfer, knowing it was a false representation and defrauding the National Bank thereby. The amounts involved are VT 3.800.000, VT200.000 and VT2.000.000 in relation to cash withdrawals and an amount of VT3.800.000 in relation to the transfer.
   
8. The trial extended over 9 days including the first afternoon which related to amendments to the information. Several of those 9 days were spent in a voir-dire. However, despite the length of the trial, the basic course of events outlined in the evidence was not in dispute.
   
9. Lopez Adams owns a sports shop in town called Sportz Power. He supplied to the Department of Youth and Sports goods to the value of VT 78.500 and according to standard procedures, a Government cheque 2154358 was issued for that amount payable to Sportz Power. On 18th June 2007 it was picked up from the Finance Department by Lopez Adam’s employee Wendy and brought back to his shop. She gave it to the boys at the front of the store to register according to normal usual procedure.
   
10. However, Lopez Adams uplifted it and on his own admission gave it to Salendra. The circumstances of that will be discussed in more detail later as it is relevant to the question of whether Lopez Adams is guilty of the charge against him.
    
11. The next day 19th June, Lopez Adams deposited the same cheque into his business account at the ANZ. However, it was no longer a cheque for VT78.500. The amount had been altered not obviously to a sum of VT8.760.000 and his bank account was credited with that sum.
    
12. On the same day he withdrew VT700.000 in cash and over the following days, he made several further large withdrawals of cash totaling VT2.800.000 up to and including the 2nd July. He says that he paid this to Salendra. He also transferred two sums totalling in Fiji dollars, $15.000 and in vatu, VT1.003.995 to an account in Fiji which he says was Salendra’s account. He acknowledges, however, using the balance of the monies deposited for the running of his business and that also is shown by the bank account statement which is produced in evidence.
    
13. In fact his business account was in overdraft on the evening before the deposit to the tune of VT4.238.808. The overdraft limit was VT5.000.000 according to Mr. Adams. After the deposit was made Mr. Adams made also some substantial payments from the account to overseas suppliers to his business.
    
14. On 2nd July, Wendy picked up from the Finance Department another Government cheque number 2154925 payable to Sportz Power made out in the sum of VT7.500 and it was in respect of some paint which had been supplied by the shop to the Health Department. She brought it back to the store. Mr. Adams took it from the store.
    
15. On the 3rd July the same cheque 2154925 was presented at the National Bank by Sandie Leo, who said that he was given it by Salendra. It has been altered in a way that was not obvious. The alteration was in two respects:
    
    1. the payee no longer showed as Sportz Power but now showed as Sandie Leo Construction.
       
    2. The amount had changed from VT7.500 to VT9.895.000
       
16. The only evidence as to what had happened with the cheque between the time Lopez Adams took it from the store and the time it was given to Sandie Leo by Salendra is what Mr. Lopez told the police in the statement and what he told the Court directly in his evidence. I will discuss that in more detail later as it is important in relation to the question of whether he is guilty of the one charge facing him in relation to this cheque.
    
17. Sandie Leo deposited the cheque in his National Bank account and the bank credited the account with the amount of VT9.895.000. On the same day Sandie Leo withdrew VT3.800.000 cash and transfered VT3.800.000 to another account he held at the NBV, called his ATM account. Over the next few days he withdrew several large amounts of cash from the original account. The withdrawals were VT200.000 on the 5th July; VT2.000.000 on 5th July. By 10th July the balance in the account had been reduced to a minimal figure by virtue of these withdrawals. However as at that date the ATM account still had a balance in it exceeding VT3.800.000 and apparently it’s still there.
    
18. The 10th July is significant because on that day Sandie Leo tried to deposit a further cheque for VT26.000.000 in the National Bank. The size of this cheque and the very large transactions made in his account over the previous weeks, made the bank personnel suspicious. They checked with the Finance Department. Immediately, it was obvious that Government cheques have been deposited into Sandie Leo’s account for altered amounts. He was taken in to the police station and interviewed there that day generally including in relation to this cheque and again on the 28th July when the interview related to this cheque particularly.
    
19. Lopez Adams was also interviewed by the police and made a series of statements in relation to both cheques, which I will mention later. So that is the general outline of the evidence which is undisputed. I will discuss in more detail the relevant details in relation to the elements which have to be proven in respect of each charge.
    
20. I remind myself that the onus of proof in each charge and each element of the charge is on the prosecution in every case. It remains on the prosecution from beginning to end of the trial, the accused are not required to prove anything. They were entitled to give evidence but not required to do so. Both of them gave evidence. By doing so that did not alter the onus of proof. That remains on the prosecution through out. I record also that the standard of proof in relation to each charge and each element of each charge is beyond reasonable doubt. I also have reminded myself that each charge must be looked at separately and each accused must be looked at separately, and it would be wrong to reason that if the person accused might be guilty of one charge he is automatically guilty of the other. It is also wrong to reason, of course, because one accused might be guilty so might the other. So the accused and the charges have to be looked at separately. This applies particularly in relation to their statements made out of Court to the police. Those statements are evidence only in relation to the person who made them and not in relation to the other person.
    
21. I turn to look at the charges individually, first the charges in Criminal case 73 of 2007. Count 1 is the charge of aiding forgery. This is the same charge as that faced by Andre Lesines and Malon Hospmander in the trial of Criminal Case 77 of 2007. In my judgment in that trial I discussed the elements of such a charge in detail and I adopt that analysis (I am not going to reproduce it here).
    
22. The first element that has to be proven is that Salendra forged the cheque. In the context of this case that is he made a material alteration in it with intent that it should be acted upon as genuine. That element is not disputed and is clearly proven on the evidence because when it was given to him, it was for VT78.500 when given back by him it was made out to VT8.760.000. It was the same cheque with the same number, it therefore must have been altered.
    
23. Secondly the alteration was done in a way which is not visible on normal visual inspection. As I said in the earlier case I have no doubt that if the cheque was subjected to any form of high scale magnification, the alteration will be easily demonstrable.
    
24. Also according to Lopez Adam’s evidence, which I accept in this respect, Salendra gave it to him and sent him to deposit it at its altered value and he paid Salendra in cash or by transfer a sum of almost VT4.000.000 from his account once the cheque had been deposited and cleared. It is an inevitable conclusion in my view in those circumstances that Salendra altered the cheque with intent that it would be used or acted upon as genuine. In other words he forged it.
    
25. The second element is it must be proven that Lopez Adams did an act which assisted Salendra to forge that cheque. The act relied upon is that he supplied the cheque to Salendra. The supply of the cheque by Lopez Adams, which he acknowledges, did assist Salendra in the forgery for the obvious reason that unless he had the cheque he would not have been able to forge it. The raw material for his forgery was supplied by Lopez Adams. So he did in fact assist.
    
26. The third element that has to be proven is that at that time he assisted Salendra, that is that at the time he gave him the cheque, Mr. Adams had a guilty mind, that is he had the intention and knowledge about what would happen with the cheque which is required by law before someone can be found guilty of aiding a forgery. I again adopt what I said in CR 77 of 2007 as to what is required to be proven by the prosecution in relation to the accused’s state of knowledge in order to be found guilty. What I said there is set out at some length and in summary in paragraph 66 in that case and I don’t intend to repeat it now. The accused Mr. Lopez Adams denies that he had that guilty knowledge.
    
27. Guilty knowledge must also be proven in relation to the other two counts in this information. In Count 2, what must be proved is that the accused knew that the cheque had been forged; knew that it was false and that it was not a genuine cheque for VT8.760.000 when it was presented for deposit at the ANZ bank and Mr. Adams denies that as well.
    
28. And in relation to Count 3 it must be proved that he dishonestly deceived the bank, that is when he deposited the cheque and obtained the credit in the account, he knew he was not entitled to that. Again Mr. Adams denied that that was the case.
    
29. All other elements of Counts 2 and 3 in this information are proven and admitted. There is no dispute that Mr. Lopez did deposit the cheque in his account and there is no dispute that in doing so, he obtained a valuable thing or a financial advantage in the words of the Section in the Penal Code Act, in the shape of a credit to his account of VT8.760.000. So in respect of all three counts in this information, the issue is whether the prosecution has proven guilty knowledge on the part of Lopez Adams as I have defined it in relation to each charge.
    
30. In order to decide that it is necessary to look first at the evidence which he gave to the Court. He said that he first met Salendra when Salendra approached him in his shop, sometime about May 2007 and asked to borrow money. He told Lopez that he had so much money with the Government and the Court but he could only extract a small amount to live on, not enough to support himself and his family in Fiji. He said he would eventually receive his money and offered to pay 100% interest on borrowed money from Mr. Adams. Mr. Adams said that he believed what Salendra said and lent him VT20.000. He said that Salendra came back in a few days and repaid with 100% interest and then a few days later made another borrowing of a larger amount, the second time VT30.000 and a third time VT50.000 or VT60.000 and then VT100.000 twice. During this time Salendra maintained the story that he had a Court case with the Government and was expecting big money from it.
    
31. The explanation for needing money was for living expenses and for supporting a pregnant girlfriend in Vila and later another girl who came from Fiji and stayed at Moorings. Mr. Adams said he became friendly with Salendra, met the pregnant girlfriend at their house, had meals and drinks with Salendra. He said he continued to believe his story, his confidence being strengthened by repayments with 100% interest.
    
32. He said he didn’t let his secretary know of these loans, that is Wendy, because the staff disapproved of him lending to others. But he kept a record in a diary which however he did not produce in Court because he said he’d lost it in the car that he’d hired out. He said that the pattern of borrowing and repayment and further borrowing led him to believe that Salendra was only able to get money piece by piece from the Government.
    
33. He gave a very detailed account of what he said was the last borrowing of VT2.000.000 which he said was made on the basis that VT4.000.000 was to be repaid to him, being 100% interest. He said that this loan was made on the morning after the Court house fire, which the Courts obviously knows well, 7th June 2007. He said that Salendra was waiting for him at his office in the shop (I think he meant) when he came to open the shop. Salendra said "I am sorry. You must have heard about the Court house fire, a lot of my money was lost, I need money to get Government to Court and I need money to pay my lawyer". He wanted VT 2.000.000.
    
34. Mr. Adams said that he required some proof for what Salendra was saying because it was such a big amount of money. So Salendra made phone calls purportedly to Government Ministers. First he made a call which he said was to Mr. Sato Kilman. Mr. Adams heard a voice on the other end, but he did not know Mr. Kilman’s voice so he did not know if it was him. But he said that Sato Kilman’s name was on the screen of the cell phone. He said that the person said that he was too busy to do anything so Adams said that that was not enough proof. So then Salendra called another Minister, the Minister of Sports, Danstan Hilton. He said that he saw his name on the screen of the phone. He said that Salendra said on the phone; "I need to see you" and arranged a meeting with the person he was speaking to at Cyber Café. The two of them Adams and Salendra then drove there, Mr. Adams stayed in the truck in the car park of Au Bon Marche at No. 2 and saw Salendra have a meeting with Mr. Hilton in his truck. Before that he had rung his lawyer.
    
35. Mr. Adams said that he then believed Salendra’s story and he said that they then went to the ANZ. He then gave the following evidence which I will read because it is important. I read from the notes of evidence "Where did you go? To the ANZ. What happened? I asked the teller I need to get cash, a lot of money, there were one or two questions about money and I withdrew not all of the money, not VT2m, we had some cash at the shop, I withdrew VT1m and covered it with cash in the shop and gave it to him. How was he behaving?. Still showing his frustration, anger, desperation. How did you feel when you withdrew VT1m? Hard to recall, I just hope he returned it, plus the 100% interest. After we went back to the shop where Chris was waiting to get more cash from the shop, I gave him exactly VT2m. Did he tell you when you would be paid back? In a week".
    
36. Mr. Adams then said that after about a week during which Salendra was borrowing his truck, and saying that he paid his lawyer and the Court case would be heard soon, he asked him about the money because it hadn’t been paid back. Salendra said he needed more time. After about 2 weeks, he said that he was pushing Salendra and Salendra asked for an LPO. Salendra said "I am sorry. The Court is too slow to hear my case, I need to get my money from the Government", meaning the Ministers. So he asked for an LPO meaning there a cheque and an LPO.
    
37. He said that he then gave Salendra the cheque 215438 with the Finance Department docket attached. Salendra said that he would bring it back in an hour. He said that he would go to the Government to the Ministers who had care of his money. He said he understood that Salendra’s arrangement with the Ministers was going to prompt the Department of Finance to release some of his money. Mr. Adams said he believed that.
    
38. He said after an hour Salendra came back and produced the same cheque and the amount had now been changed to VT8.760.000. Otherwise it was still payable to Sportz Power and nothing had seemingly changed.
    
39. He said that Salendra told him that his money had been actually released and without the LPO he couldn’t get his money. Mr. Adams said he was happy to get his money, plus interest of VT2m, that is VT4m and he thanked Salendra. He said he went to the Bank and deposited the cheque. He acknowledges making all the cash withdrawals earlier mentioned and says he gave this to Salendra together with the transfers to Fiji, earlier mentioned. His evidence was to the effect that Salendra was entitled to the balance above VT4m, in other words VT4.760.000. He acknowledged that the amount not given to Salendra was utilized in his business. His evidence was that he believed that all was genuine and he never acted dishonestly in what happened. That was his evidence about that cheque.
    
40. It is broadly but not always exactly the same as the accounts he gave in three statements to the police on the 14th and 31st July and in a statement which was prepared by him to the police on the 7th August. In that last he acknowledged that he came to know before the 19th June that Salendra had previously been suspected for making counterfeit notes, but not convicted by the Court.
    
41. The first thing the Court must do is to record its findings in relation to the truth of the evidence given by Lopez Adams. Unfortunately, I am unable to say that the Court is able to place any reliance on the truth or accuracy of the story told by Mr. Adams. The reason for that is because the evidence is in some important parts implausible, that is inherently unlikely. Secondly, and just as importantly, because Mr. Lopez was caught telling a deliberate and detailed lie to the Court about one of the most implausible aspects of the story. But an aspect which is integral and important to it.
    
42. Possibly the most implausible aspect of this detailed story was that Mr. Adams would have lent VT2m to Salendra, a man he had only met a month or less before and whom he knew had been suspected of counterfeiting notes, although not convicted. Equally implausible that he would have VT2m cash available at an hour or two’s notice especially given the state of his company’s overdraft. Of course the overdraft was different on the 7th June, the day he said that he gave him the money.
    
43. It was an important part of the story because it provided some sort of explanation for how he could, acting honestly, bank a Government cheque made out to his company for VT8.760.000 when he knew his company was owed only VT78.500 by the Government, and that’s what the cheque was originally for. And it was an explanation of how he could end up retaining at least VT4m of that for his own use and still be acting honestly.
    
44. Unfortunately the evidence he gave about where he got the VT2m allegedly given to Salendra was about the only part of his account which could be independently verified. He said that on the morning of 7th June 2007, after seeing Salendra at Au Bon Marche with Danstan Hilton, he traveled to the ANZ bank with Salendra and withdrew VT1m in cash from his account. He even described being questioned by the teller about such a large withdrawal and then going to the shop and making up the amount of VT2m with cash allegedly kept at the shop.
    
45. However, he had overlooked the fact that his company’s bank statement from the 1st June 2007 had already been produced as an exhibit in the Court. It showed no cash withdrawal of VT1m on the 7th June or any other time before the 19th June when this cheque was deposited at VT8.760.000.
    
46. The Court itself asked him during his evidence in chief:
    

"where is the withdrawal in your account of VT1m on 7th June?"

His answer:

"I do have another account at ANZ, I can’t remember the number and I have a personal account at Westpac".

He then dug the hole deeper because when his lawyer asked him if he could show the Court statements of his other account he said "Yes" and his lawyer asked him if he could get the accounts over the lunch break, he said that he could.

47. Needless to say, no such statements were produced after the lunch break. When asked for them, Mr. Adams admitted to the Court the day before, that he’d lied to the Court and he then told the Court another story that in fact he had borrowed VT1m from his girlfriend, and he had lied in order to protect her name from being brought into it. He did not explain when he had got that VT1m from his girlfriend to give to Salendra on the morning of the 7th June or how come his girlfriend had VT1m in cash to lend to him or why his girlfriend gave it to him.
    
48. I have to say that I do not believe the girlfriend story, which is quite implausible and not corroborated in any way. In my view it was another lie made up to replace an admitted lie which Mr. Adams had been caught out on. It is possible in my judgment that Mr. Lopez did lend small sums to Salendra and possible that he was repaid double. That is the classic modus operandi of a conman, which Salendra undoubtedly is. However I do not believe that Mr. Adams lent Salendra VT2m and I am satisfied that his evidence that he did lend him VT2m is untruthful for the reasons I have given. Further confirmation of that is that in fact Mr. Adams did not return VT4.760.000 to Salendra as he claimed. What his bank statement shows is cash withdrawals totaling VT2.800.000 which I accept were probably given to Salendra and telegraphic transfers totaling VT1.003.995 making a total of VT3.803.995 paid to Salendra or, to put it in another way, Mr. Adams kept and spent not VT4m but VT4.959.005 and that is according to his own evidence.
    
49. So what does this mean in terms of the case? First, it means that the Court cannot rely on the honesty of Mr. Adam’s evidence. It has been shown to be dishonest in an important part.
    
50. However if would be wrong for the Court to reason that because he lied, therefore he must be guilty. The Court must ask itself why he lied. It certainly was not for the reason he gave, to protect a girlfriend. That in my view was another lie as I have already said.
    
51. In my judgment, the reason why he lied was because he wanted to provide the Court with an explanation of how, acting honestly, he could bank a Government cheque made out to his company for that very large sum, more than 10 times what he was owed by the Government and how he could use at least VT4m of it for his own business purposes if he was acting honestly.
    
52. The fact that the explanation he gave for that was a false one, means that his evidence has not provided the Court with an explanation for how he could honestly bank that cheque, and how he could honestly use more than ½ the proceeds of it, nearly VT5m for himself.
    
53. As I have said the Court cannot simply reason, he has lied, therefore his is guilty. The Court must still put aside his evidence and see whether on the rest of the evidence the prosecution has proven each charge beyond reasonable doubt keeping in mind of course the findings the Court has made about the reason why he lied in evidence.
    
54. I turn now to Count 1 – aiding forgery of that cheque. There is no doubt of course that Mr. Adams deliberately gave the cheque to Salendra. However, having rejected the accused’s evidence, there is in fact no evidence to the Court as to what was said between them at that time the cheque was given which was one day or less before it was deposited. I doubt that Salendra would have told Mr. Adams that he was simply going to change the figures on a laptop which is almost certainly what he did. Salendra is a dishonest man and could have said anything. The state of the accused’s knowledge on this charge has to be judged at the time he handed over the cheque not later. Did he know or is it proven beyond reasonable doubt that the fraudulent alteration of the cheque by Salendra was a substantial risk or a real possibility? He may have appreciated that, especially given his prior knowledge of the charge of counterfeiting against Salendra. However, I cannot be satisfied beyond reasonable doubt that he knew at that moment, the moment he handed over the cheque, that forgery was a real possibility. There is not enough evidence for me to be satisfied of that to the high degree required by the criminal law.
    
55. Therefore on Count 1 in Criminal case 73 of 2007 I find the accused not guilty because I give him the benefit of the doubt as the law requires me to.
    
56. On Count 2 his state of knowledge has to be judged at a different time, that is when he deposited the cheque. Now he knew that the same cheque 2154358 which was for VT78.500 was now for VT8.760.000; he knew that a new cheque had not been issued to Salendra or to him; he knew the old cheque had been changed in a way that you could not obviously see and that is the old words and figures had been erased somehow and new ones put in; he knew his company Sportz Power was the payee and had no right to any Government cheque for more than VT78.500 let alone for such a huge sum VT8.760.000.
    
57. What he did afterwards also throws light on what he knew when he banked it. What he did afterwards was to keep VT4.959.005 of the proceeds of the cheque for himself, even though the most he could possibly justify was VT78.500 because the story of Salendra paying him back VT4m has been shown untruthful. Even assuming that some small sum was owed at the time by Salemdra, Lopez has kept well over VT4m which he could not possibly have any honest claim to. I conclude that this was his share for laundering this false cheque by depositing it in his bank account and paying part of it to Salendra.
    
58. I am satisfied beyond reasonable doubt that when he banked the cheque, he knew this cheque was a false one and he is guilty of Count 2.
    
59. It follows that he also has the required guilty knowledge for Count 3. When he obtained that credit to his bank account, of VT8.760.00 he knew it came from a false cheque and he knew he wasn’t entitled to it. He dishonestly obtained that credit by deceiving the bank into believing that the cheque was a genuine one, when he knew it was not. He is guilty of Count 3 of that information.
    
60. I turn to the information in Criminal Case 74 of 2007 regarding cheque 2154925.
    
61. The first count is again against Lopez Adams. It is a count of aiding the forgery by supplying the cheque to Salendra knowing it would be forged.
    
62. The accused’s defence here is simple. He said that he did not supply the cheque to Salendra. Salendra must have taken it from his car or possibly his house without his knowledge. The only direct evidence that the Court had about what happened to this cheque between the time that the accused took it from his shop in its original form until the time Salendra gave the cheque now forged to Sandie Leo to bank in his account is the accused’s evidence: for reasons already explained, I cannot place any reliance on him giving truthful evidence.
    
63. First I should say that I am satisfied that this cheque was forged by Salendra which is the first element that has to be proven. The reasons are for the same as is given in relation to Count 1 on the other information. Secondly, and this is the element in dispute in this case, the prosecution have to prove that the accused gave the cheque to Salendra which he denied.
    
64. The prosecution asked the Court to infer, that is, deduce that, given what happened with the earlier cheque, that Mr. Adams gave this cheque or sold it to Salendra knowing Salendra would forge it like he did the earlier one.
    
65. I have to say that that is very likely. Indeed I am almost sure that that is what happened. However I am not completely sure. The reason why I have some small doubt is based on 2 things. First this cheque was changed not just in the amount but also in the payee. Sportz Power was changed to Sandie Leo Construction. And of course the cheque was not given to Adams to present. It was presented by Sandie Leo at a totally different bank. Of course there is more work and risk to Salendra in changing two items on the cheque rather than one. So Salendra must have had a reason to do it. It is possible that Adams told Salendra that he did not want to take the risk of banking a second cheque into his account. It is possible that Salendra found it easier to get all or most of the proceeds of a forged cheque out of Sandie Leo than out of Mr. Adams. Indeed the facts of the case would suggest that because Mr. Adams kept more than half of the proceeds of the first cheque which he banked.
    
66. But it is also possible that Salendra pinched this cheque and did not want to let Lopez Adams know that. That is a possibility because I am satisfied that Salendra did have access to the accused’s car and I am also satisfied that he is a very dishonest man, quite capable of ripping off his so called friends as well as the Government. So although it is very unlikely that he got the cheque without Mr. Adam’s assistance, it is just possible. The law gives the benefit of any reasonable doubt to the accused. He is therefore acquitted of Count 1 on Criminal Case 74 of 2007.
    
67. I turn to the remaining Counts against Sandie Leo. These all come down to whether it is proven that Sandie Leo had the required guilty knowledge. There is no doubt of the physical elements of the offence. I am satisfied that cheque 2154925 was forged by Salendra. I deduce that from the fact that it was originally for VT7.500 made to Sportz Power and that Sandie Leo acknowledged being given it now for VT9.895.000, payable to Sandie Leo Construction. He was given it by Salendra for banking and withdrawal of funds to be paid to Salendra who had no right to any Government cheque. So I deduce that Salendra got hold of that cheque in some way and fraudulently altered it.
    
68. It is also acknowledged by Sandie Leo in his evidence and proven through Martha Kelep the teller that he dealt with the cheque by depositing it and that he obtained a credit thereby in his bank account in the amount of the cheque and that he made the cash withdrawals referred to in Counts 4, 6 and 7 and the transfer in Count 5. I will return however later in this judgment to Count 5 relating to the transfer of VT3.800.000 from one account of Sandie Leo to another account of Sandie Leo.
    
69. Sandie Leo gave evidence at great length, one could almost say excessively great length. It is not necessary to recite his evidence at the same or any great length. The essence of his evidence and his defence is that he was not acting dishonestly when he made the deposit of the forged cheque into his account and when he made the cash withdrawals referred to in the charges. His case is that he is a naïve and simple man, unable to read, who simply did what he was told by Salendra whom he had met not long before; he did not know how much the cheque was for; the deposit and withdrawals were all arranged by Salendra with the teller; he did not know the cheque was forged and believed that everything was above board and Salendra was entitled to the money and he gave all the cash withdrawals to Salendra believing that he was entitled to Government money.
    
70. I remind myself that Sandie Leo is not required to prove he was acting honestly, rather the prosecution must prove that he acted dishonestly and that position does not change because Sandie Leo gave evidence.
    
71. I have to say that I reject the accussed’s evidence on the main issue, the issue of what he knew. I find that he was well aware that these transactions were dishonest, and that the cheque was forged and that Salendra had no right to this money. The proven facts lead inevitably to that conclusion and I am satisfied of it beyond reasonable doubt.
    
72. I accept that Mr. Leo is an unsophisticated and largely uneducated man and that he was used by Salendra. All of that was obvious just from hearing the evidence including his own evidence. However I do not believe that he did not know what was going on here. He can certainly read numbers. He is a small scale builder, he sends invoices, even though he says written by someone else. He knows from personal experience how the Government payment system works, he has received Government payments for building work on a number of occasions, he owns and uses a mobile phone, which of course one operates by pressing the numbers on the phone.
    
73. It is ludicrous to suggest as he tried to that this cheque was folded twice two ways so he did not know how much it was for and he didn’t open it. He must have seen it in order to bank it. He knew how much cash he walked out with on the day VT3.800.000. He watched it being counted by the teller in the small room in the bank in front of his eyes. He must have known how much was transferred in order to tell the teller. It may be that on occasions he rung the teller beforehand at Salendra’s instigation and told her what Salendra told him to say about how much money he wanted to pick up etc. That doesn’t mean he didn’t hear himself saying it, and didn’t know what he was saying in terms of figures. He knew how much he withdrew on the other days because he had to ask for it, either at the bank or at the bank and through the phone. And he had to have it counted out for him and he had to carry it out of the bank
    
74. Secondly, whether he can read or not he knew the cheque was made out to his account of Sandie Leo Construction, because he paid it into his account and signed the deposit slip and he withdrew the funds from the account signing withdrawal slips.
    
75. He knew Sandie Leo Construction was not entitled to any Government cheque, let alone one for the huge amount of VT9.895.000 which must be many, many times Mr. Leo’s annual income.
    
76. He admitted in a statement to Police that he made on 10th July that as early as 5th June he gave a Government cheque of his to Salendra and that after visits were made to various places in Vila where photocopies of the cheque were made to his knowledge and then Salendra taken to a place where he was given access to a laptop on his own. Salendra came back with a cheque that time for VT980.000 and Mr. Leo deposited it into his National Bank account and withdrew VT400.000 and gave it to Salendra.
    
77. The balance of that particular sum Mr. Leo admits keeping, and spending it. He says it was spent on living expenses and drinking kava and beer with Salendra and others whom he named. Whatever, he admits that he kept that money.
    
78. He also admitted depositing another cheque Salendra gave to him on 27th June for VT11.800.000 and withdrawing cash and giving it to Salendra and getting some back. Then he admitted in his statement depositing cheque 2154925, the subject of this case.
    
79. In that statement which Mr. Seule, Police officer gave evidence of he said at page 4, "follem cheque namba 2154925 we mi bin depositim long numba 3 Jun 2007, mi no reali save se hemi blong hu stret. Mi wantem talem aot long ples ia se long last wik mifala wetem Salendra I stap long Fung Kuei taem Chris I kam givim wan cheque long Salendra mo mi wantem talem aot se Salendra even talemaot long mi se hemi no wantem mekem cheque blong olgeta from oli no stap givim mani long hem. So mi sure se cheque ia nao Salendra I bin mekem mo changem amount blong hem. Mi rememba long numba 3 July 2007 Salendra I bin ringim me mo Kalo I karem mi I go long haos blong Jacob mo go karem cheque ia. Mi kam putum long bank and mi withdrawem ol mani ia I go long Salendra".
    
80. And a statement he made later on the 31st July after Police had decided to get separate statements from the people involved in relation to each separate cheque. This policy has led to the decision somewhat unfortunate by the prosecution to have separate informations and separate trials for each cheque and that unnecessarily removes relevant evidence directed to one cheque which is relevant also to charges in relation to other cheques.
    
81. Anyway in that statement, which I held admissible after voir dire, he admitted:
    

"Q37: Taem Salendra I talem long yu se bae yu go karem wan check, yu bin save gud se long taem ia yu no gat any Government Check we yu should kasem?

A: No gat

Q41: Taem Salendra I givim check ia long yu, yu bin save gud wantaem se yu never gat wan check?

A: Yes.

Q42: Yu save gud se bae yufala I go steal nao?

A: Yes."

And there are other incriminating questions and answers.

82. Finally the evidence of the teller Martha Kilip, which I accept. She said that when she asked Sandie Leo as required by her employment, how it was he had such a big Government cheque, he said it was for work done at Parliament House, for the boys and for Westpac work. That was a lie, a lie he did not need to tell if he believed the cheque was genuine as he says now.
    
83. Those are the main points for finding the accused knew this cheque was false and the deposit and withdrawals fraudulent and dishonest. I have to say that the evidence of that is not just strong, it is overwhelming.
    
84. The Defendant must be convicted of Count 3 and Counts 4, 6 and 7 (which relate to the cash withdrawals). Count 5 I think is misconceived. It relates to the defendant procuring a transfer from 1 of his accounts to another. He did not obtain any money just a debit in one account and a corresponding credit in the other. He is acquitted of that charge.
    

Dated at Port Vila, this 15th day of April, 2008

BY THE COURT

C.N. TUOHY
Judge