Public Prosecutor v Lesines [2008] VUSC 8; Criminal Case 77 of 2007 (14 March 2008)

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

Criminal Case No. 77 of 2007

PUBLIC PROSECUTOR

-V-

ANDRE LESINES
MALON HOSPMANDER

Coram: Justice C. N TUOHY

Date of Hearing: 11, 12, 14, March 2008
Date of Decision: 14 March 2008

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

ORAL JUDGMENT

1. The two accused Andre Lesines and Malon Hospmander are charged with one charge of aiding Forgery. The particulars of the charge are that between the 1st June 2007 and 27th June 2007 at Port Vila, Andre Lesines and Malon Hospmander aided Salendra Sen Sinha to make a false document, namely a Government of Vanuatu cheque number 215417, by making a material alteration to the document, with intent that it be acted upon as genuine.
   
2. The charge is Count 1 in an information containing 3 counts. The other two counts are against Sandy Leo for uttering a forged document and theft of VT11,805,000. Uttering means dealing with the cheque as if it were genuine.
   
3. Count 1 against these two accused is being dealt with in a separate trial, simply because the accused wanted their trial to be dealt with as quickly as possible and time was available but Sandy Leo was not present. So his trial remains to be held on Counts 2 and 3.
   
4. In an effort to speed up the trial, the accused made a number of formal admissions which are set out in a written document. I do not intend to reproduce it, but it does enable me to state a lot of the relevant facts shortly and without extensive reference to the evidence.
   
5. The accused Malon Hospmander is a member of Parliament for a constituency in Malekula. The accused Andre Lesines at the relevant time was 1st Political Advisor to the Ministry of Foreign Affairs. He is a political associate of Mr. Hospmander, he is also of Malekula, he was at the time Chairman of the Regional Co-ordinators of the People’s Progressive Party, the party which Mr. Hospmander represents.
   
6. Every member of Parliament is entitled to an allocation of VT2.000.000 per annum, payable in three monthly instalments of VT500,000 each, for the use and benefit of the community he represents. In the case of Mr. Hospmander, the Unua Community in Malekula. Mr. Hospmander applied for VT500,000 for the Unua Community and a Government cheque drawn on the Reserve Bank was produced. It was made out to the Unua Community as payee and was for the sum of VT500,000 and was cheque number 2154172.
   
7. Mr. Hospmander picked it up from the office of Willy Watson at Parliament on or about the 5th or 6th June 2007. There was a bank account at the National Bank of Vanuatu in the name of the Unua Community. Previous MP allocations had been paid into it. The accused gave evidence that there were three signatories for the account and withdrawals required the signature of two of those three signatories. One of the signatories was Mr. Hospmander, the other two were a gardener and a filing clerk at Foreign Affairs. Mr. Lesines was not a signatory on the account.
   
8. This cheque 2154172 was not banked into the account of the Unua Community. Instead it was given to an Indo-Fijian man by the name of Salendra Sen Sinha. The circumstances in which it was given to Salendra, and the exact involvement of each accused in that will be discussed in more detail later in this judgment as it is very relevant to the issue of the accuseds guilt.
   
9. On 27th June 2007 the cheque which had been given to Salendra, number 2154172, was presented at the National Bank in Port Vila and deposited into the account of one Sandy Leo. It is admitted by the accused that the cheque had been altered. It was now made out to Sandy Leo as payee, the amount of it had been altered to VT11,805,000. Sandy Leo’s account was credited with that amount and virtually the whole amount was withdrawn within a very short time.
   
10. The case against the accused is that Salendra forged the cheque after it was handed over to him and the accused aided him in that forgery by supplying the cheque to him. While acknowledging that they did hand the cheque over to him, the accused denied that they knew that it would be fraudulently forged.
    
11. In order to decide whether the charge has been proven for each accused it is necessary for the Court to consider the evidence relating to the circumstances in which the cheque was handed over. There is no direct evidence about that from the prosecution witnesses. The Court is relying on what the accused told other witnesses about it and what each of them said about it in their own evidence because both of them gave evidence. The Court can, of course, also draw inferences, that is, deductions from the surrounding circumstances which have been proven.
    
12. There were in fact at least three different accounts given to the Court as to what happened. The first account is what the accused are alleged to have said to two employees of parliament, Willy Watson and Lino Sacsac. The second and different account is what the accused said in the written statements they made to the Police after their arrest in early August. The third account, which is different again, is what each of them said in their evidence to the Court.
    
13. In considering these matters, I remind myself that any statements made by an accused outside the Court, that is, any statement to the Parliamentary employees or any other police statements, is admissible evidence only against the person who made the statement and not against the other one. So that the evidence of what Mr. Hospmander said to Willy Watson and Lino Sacsac is evidence only against him, not against Mr. Lesines. And likewise the evidence of what each of them said in their police statement is evidence against only the person who made that statement.
    
14. I turn first to the account which is alleged to have been given to Willy Watson and Lino Sacsac. Willy Watson is employed in the Finance Department of the Parliament. He said that after the news came out about the cheque fraud, he asked Mr. Hospmander to come into his office to tell him what had happened. He said that he called the Clerk of Parliament, Lino Sacsac into his office as a witness to what was said. Mr. Watson was asked "What did he tell you about the cheque?". His answer was "He (that is Hospmander) said that he handed over the cheque to a Fijian called Salendra direct." In cross examination he said that Mr. Hospmander called into his office because he had asked him to come in, so Watson could find out his story about what happened. In cross examination he expanded on what Mr. Hospmander had said. He (Watson) said that Hospmander said this: that he got a cheque, he went down to meet Salendra at the Waterfront, (meaning the Waterfront Bar & Restaurant), that he gave the cheque to Salendra there, and that he received from Salendra an amount of cash greater than the value of the cheque.
    
15. Mr. Malcolm correctly put to Mr. Watson what Mr. Hospmander’s evidence was going to be about that, which was that there was no discussion at all about the cheque and that Mr. Hospmander was not called in but he came in, of his own accord simply to ask what the balance of his Parliamentary allocation was. And Mr. Malcolm suggested to Mr. Watson that he had become confused and was relating what he had read and heard in media reports and not what Hospmander had told him. Mr. Watson was firm in his evidence. He said that he had not absorbed this from media reports but that this is what Hospmander told him.
    
16. Then Lino Sacsac, Clerk of Parliament, gave evidence. He has been in the job for 23 years. He said he was present when Mr. Hospmander came into Mr. Watson’s office after the news broke. Mr. Sacsa said this. "Watson Willy asked about what happen about the cheque he gave him. The Honourable Member said after he got the cheque he went to the Ministry of Foreign Affairs and he met the 1st Political Advisor for the Ministry there and then the 1st Political Advisor asked him if he had with him the cheque. And the Honourable Member told him yes. The 1st Political Advisor told him that if you like you can make a bit of money from the cheque. I will give you a mobile phone number and then the Political Advisor gave him the phone number. Sometime later he rang that number and after he rang the number someone answered and they talked with the person on the line, who asked if he was a member. And when he said he was a member of Parliament, the member said I am a member of Parliament, I am interested to see you. The person on the telephone did not say who he was at that time. Mr. Hospmander then said that he had made an appointment to meet the person on the phone at the Waterfront. He said that he met a man there who was an Indian man. He was at a table at the Waterfront and he called out to Mr. Hospmander to come and sit with him. The Indian ordered some drinks, while they were drinking the Indian asked do you have that thing with you. Mr. Hospmander said yes, and then the Honourable Member said before I give the cheque you give me the VT1.000.000 first. That he gave him VT1.000.000, and the Honourable Member handed over the cheque.
    
17. He said that after the Honourable Member had given that account, Willy Watson asked him: do you know the cheque does not belong to you it belongs to the Unua Community. He said that after a pause the Honourable Member’s reply was "Mi mi wantem VT1.000.000 nomo". So that was Mr. Sacsac’s evidence.
    
18. Again in cross examination it was put to him by Mr. Malcolm that actually Mr. Hospmander might have been saying that it was Mr. Lesines who gave the cheque to the Indian at the Waterfront. However Mr. Sacsac was adamant that Mr. Hospmander was talking about what he, Mr. Hospmander himself, did. So that was the first account of how the cheque had been handed over, the account given which Mr. Watson and Mr. Sacsac say that Mr. Hospmander gave to them.
    
19. The second account is what is written in the accused’s written statements given to the Police on or about 9th August after they had been arrested in Malekula. These written statements were the result of interviews which took place in the Port Vila Police station at that time. They were statements in a narrative form written out by the interviewing officer Fraser Tambe based on answers given by the accused to the questions put to them. Those written statements were signed by each accused. The accused were interviewed separately over some considerable time, about 2 hours in the case of Mr. Hospmander who was the first person interviewed.
    
20. The statements are in Bislama and I am simply going to record my summary of the important points from them. Mr. Hospmander said that after he picked up the cheque on 5th June he took it back with him to Malekula. While in Malekula Mr. Lesines rang him and asked him if he still had the cheque. Lesines said that if he gave it to Lesines, he Lesines would give it to a friend of his, who would give Mr. Hospmander VT1.000.000 for it. He said he asked Lesines three times if he was sure and Lesines said it was true. He said that Lesines assured him that the cheque would be alright. He said he came back to Vila on the 27th June and said that he was picked up at the airport by Mr. Lesines together with MP Noel Tamata. He said he gave the cheque to Lesines, Lesines got out at the Waterfront, he came back and said he had handed the cheque over.
    
21. Next day 28th June, Lesines came to Parliament house and gave him VT500.000 instead of the VT1.000.000 promised and he, Lesines, said he would give him the other VT500.000 the next day but he never did. He said "Mi agri se mi no gat raet ia blong mi givim personal cheque blong mi I go long narafala man, however follem carelessness mo ignorens blong mi, mi bin givim wetem biliv se mbai mi recivim mo mani I kam. However I no bin kam tru". He also said he did not know how the cheque amount had been changed to VT11.805.000 and said that if he had known Salendra would change the cheque like that he would never have given it to him.
    
22. Mr. Lesines in his written statement said that in early June he met Salendra in the Yellow Submarine nightclub and was introduced to Salendra there by James Weties. Salendra told him that he had businesses in the United States, Fiji and New Zealand. Salendra told him that he could sponsor the PPP for community projects and Mr. Lesines said that he agreed to meet Salendra two or three times to be sure he was a genuine person.
    
23. At the end of June Salendra asked him if he had VT500.000 in cash and if he, Lesines, would give it to him, Salendra, Salendra would give him back VT1.000.000. So he says that he rang Hospmander in Malekula and asked him if he had any money and Hospmander said no, that he had got the cheque for Unua Community.
    
24. So Hospmander traveled back on the 27th June to Vila. Lesines with MP Tamata picked him up at the airport. They went to the Foreign Affairs office, discussed what to do with the cheque. While there Salendra rang and told him to bring the cheque to the Waterfront Bar. He went to the Waterfront, Salendra arrived in a taxi, he gave Salendra the cheque. Salendra did not give him the money there and then but promised to give it to him later.
    
25. The next day Salendra rang and he went to meet him at the Waterfront Bar again with the two members of Parliament waiting for him at Parliament. He said that Salendra gave him VT500.000 and he took it back to Parliament and gave it to Mr. Hospmander. He said that Salendra told him he would give him another VT500.000 later but has never done so, even though Mr. Lesines has tried to get it on more than 1 occasion before going back to Malekula on the 5th July.
    
26. He said that he was not aware that Salendra would change the cheque but acknowledged that it was wrong to give a cheque to someone when he knew the cheque was in the name of Unua Community. So that was the second account. More or less the two statements gave the same story.
    
27. The third story was contained in the evidence of the accused at Court. Mr. Hospmander told the Court that he picked up the cheque from Watson’s office on the 5th or 6th June. He said that he went with it to the Ministry of Foreign Affairs, gave it to Lesines for him, Lesines, to cash it. He said the reason he did that is because he was going to Malekula two days later. He said that he went to Malekula leaving the cheque with Lesines, stayed there for about a week and then he rang Lesines from Malekula and asked him if he had cashed the cheque and was told that he had not. He said that flew to Vila the next day the 13th June. He said he was picked up by Lesines, that there was no discussion of the cheque. He was driven to his house in Kawenu and dropped there. He says that he got the cash for the cheque VT500.000 the next morning, Thursday 14th June. He said that Lesines did not say where he cashed the cheque or who cashed it. He said that he had no knowledge it was given to Salendra, he said he had never heard of Salendra up to the time that he received the cash and had no knowledge about any problem with the cheque until he was on his way back from China, which was about mid July.
    
28. He described his arrest in Malekula and the events leading up to the making of the statement to Police Officer Tambe. He appeared to deny that the caution on the statement had been read to him. He did however acknowledge that the statement was read back to him before he signed it. He acknowledges signing it on each page. He said however that even though he signed it, parts of it were true only and parts of it were untrue. In particular he said that it was not true that he was to receive VT 1.000.000 in cash for cheque. He said that he signed it even though it contained untrue things because he was uncomfortable and ill at ease and frightened in the Police Station and because Mr. Tambe told him to sign it, therefore he says that he signed it.
    
29. In cross examination he acknowledged that he could have deposited the cheque at the National Bank in Lakatoro and withdrawn from it there. He acknowledged banking the previous allocation cheque in Unua Community National Bank account. He said he gave a pass book to Lesines with the cheque. He denied having heard anything about Salendra previously in the media. He denied telling officer Tambe of what was in the statement, namely that he had taken the cheque to Malekula and Lesines had rang him while he was there, telling him he knew a man who would give a million vatu for it. He said he was too frightened to say at the Police Station that it was untrue, when he was asked why he did not point that out.
    
30. He was queried about the difference in dates about when he came back from Malekula, 13th June as he said in his evidence or 27th June as he said in his statement, and he explained that it must have been a mistake. He denied that Mr. Tamata was in the car when he was picked up from the airport. He denied saying anything about being offered VT1.000.000 for the cheque. He denied telling Mr. Tambe what is in the statement about the other VT500.000. Again he explained it on the basis that he was afraid. He acknowledged being advised of his rights but said that he was not advised of any more detail than what is in the caution in the box. He said that he did not leave a withdrawal form with Lesines but in reexamination he said that he did leave a withdrawal form with one of the other signatories when he went to Malekula.
    
31. As to Watson and Sacsac’s evidence, he denied their evidence, he said that they were both lying and that all he had called in for to Parliament was to ascertain the balance of his allocation and he was told that it was VT1.000.000. He was not really able to provide any reason why Mr. Sacsac or Mr. Watson might have told untruths.
    
32. Then Mr. Lesines gave evidence. He said that the cheque was given to him by Hospmander in his capacity as Chairman of Regional Co-ordinators of PPP on the afternoon of 5th June. He said that Hospmander authorized him, Lesines to cash it later. He said he did not have a withdrawal slip as it was kept by the other signatory, the filing clerk at Foreign Affairs. He said that Hospmander went to Malekula a day or two later to ascertain the needs of the villagers of the Unua Community. He says that Hospmander contacted him from Malekula just before his return a week or so later and enquired whether the cheque had been cashed yet and was told "No" and Hospmander also asked to be picked up from the airport. He said he went to his office where he got the cheque dropped Hospmander off at his house at Kawenu. He said that he then contacted Salendra in order to get some cash for the cheque. He said he did this because the banks were by now closed, it being Wednesday evening.
    
33. He acknowledged knowing Salendra previously, saying that he met him at the Olympic building. He acknowledged later that the Olympic building contained the Yellow Submarine. He said that he took coffee with Salendra twice. He said that Salendra told him he was a businessman with businesses in the US, Fiji and New Zealand. He said that he had never heard of him before he met him. He did acknowledge some contact with him at Tamanu Beach resort. This was a reference to the evidence of a prosecution witness Mr. Yannick who worked at Tamaunu Beach Resort and knew Lesines and he had seen Lesines in company with Salendra at the Tamaunu Beach Resort, when Salendra came there to pick up a lobster salad which he had ordered from Breaka’s Resort.
    
34. He, Lesines said that he called Salendra on this night of Wednesday 13th June and asked him if he could cash the VT500.000 cheque in order, he said, so that he could give the cash to the Honourable Member quickly. Salendra said he would ring back. He did so 2 or 3 hours later, saying that he had the VT500.000 cash and would meet Mr. Lesines at the Waterfront Bar. He did meet him there and exchanged the cheque for VT500.000. He denied receiving any further payment of another VT500.000 and denied that he was promised a further VT500.000.
    
35. He said that the next morning Thursday 14th June he gave Mr. Hospmander the VT500.000 cash in an envelope at Parliament House. He said that he only heard that there was a problem with the cheque at the end of July when he was in Malekula. He said he was arrested at his village, Rano, in Malekula. He was back there to recover from an illness, which had caused weight loss and which he ascribed to black magic. He said that he was put into Number 6 at Lakatoro but because of his condition stayed at a Police Officer’s home there, overnight. He was then flown to Vila in the custody of a Police Officer from Malekula and in company with Hospmander.
    
36. At Bauerfield he was re-arrested, quite unnecessarily it appears, and quite obviously for the benefit of the crowd and the media who were gathered there. He was handcuffed, put into the back of a Police van which has got a cage around it and taken to Vila with the siren sounding. He was put in a holding cell in the Vila Police Station and questioned in the Fraud Squad office by Mr. Tambe in the company of two others after Mr. Hospmander had been questioned.
    
37. He described the same process as Mr. Hospmander had described, except that he said that the way that he was questioned is that Hospmander’s statement which had already been taken was put to him and he was asked whether he agreed or not to what was in it. He also said that he was told to sign it, his statement, and did so even though it was read back to him and even though he said that it was in part not truthful and not what he said. He said that he did that because he was unaccustomed to the situation, not well, under pressure and afraid because of the situation he was in and what had happened on the preceding day or so.
    
38. He was taken through his statement and denied saying many of the things which are recorded in it. He denied that Salendra had offered to sponsor any PPP projects. He denied that Salendra had made an offer of VT 1.000.000. On the question of the difference in dates, he said that it must have been his mistake. He denied that Mr. Tamata was at the airport with him when he picked up Mr. Hospmander at the airport. He denied telling Mr. Tambe the Police officer that Salendra rang him first; he denied saying that Salendra did not give him any money when they met; he denied saying that Salendra gave him VT500.000 the next day; he said that he did not say that Salendra promised VT1.000.000 and said that he did not ask for the extra VT500.000 and did not tell that to Mr. Tambe. He says he nevertheless signed the statement for the reasons that I have already mentioned.
    
39. He was cross examined by the Prosecutor at considerable length. When asked why did not try to cash the cheque between the 5th and 13th June, he said that it was because he put the cheque in his desk and that his priority was his work duties for the Government as a political advisor. He was asked why he did not just cash the cheque on Thursday when the bank was open. His answer to that was unclear, but it was to do with the need to carry out the trust placed in him by his political associate, the Honourable Member. He acknowledges that he did not know what business Salendra was in, he said that he asked Salendra that but Salendra did not specify.
    
40. When asked by the Court twice, what made him think Salendra would have VT500.000 cash available at night, he gave answers but they did not address the question, at least certainly not in any direct way. When asked what did he think Salendra was going to do with the cheque, he answered he would cash or bank the cheque. When it was then put him that the cheque was made out to Unua Community, he said he did not think about what would happen to the cheque.
    
41. He acknowledged that he held the passbook and that the signatories were not him but Hospmander and two others. He was taken through his written statement and gave the explanations which I have already mentioned for signing the statement when according to him there were things in it which he did not say to the Police and which were not true. He finally said that he gave the VT500.000 to Hospmander on the Thursday the 14th and he thinks that Hospmander went back to Malekula on the following Saturday.
    
42. The first thing that the Court needs to comment on or make findings on is the credibility of the accused’s evidence. I have to say that I do not believe the evidence that each of them gave in the Court, which was more or less the same in the main points. In fact I consider that they have concocted an untruthful story.
    
43. I say that for the following reasons: the first is that the story that they told the Court was completely implausible, it is not believable. Specifically the story that the cheque was left with Lesines in Vila to cash makes no sense. Why give the cheque to Lesines when it was not Lesines’s cheque, it is Hospmander’s community and Lesines was not a signatory on the account and could not withdraw money from it except with the signatures of the two signatories, he not being one? Hospmander was the signatory, Hospmander could cash the cheque himself a lot more easily in either Vila or Lakatoro, and he was the one who received the money and had to distribute it.
    
44. Finally on that point if it truly had been left with Lesines to cash it, why did he not do so in the week that he said that he had it? The reason he gave for not cashing it is not believable. He said that it was because of his work duties. Even if his story was true that he had the cheque, he had many chances to cash it, even on the way to the airport to pick up Mr. Hospmander, if he wanted to give Mr. Hospmander the money straight away.
    
45. Even more unbelievable is the evidence of Mr. Lesines that he rang Salendra to cash the cheque because the bank was closed on Wednesday night and he wanted to give the cash quickly to Mr. Hospmander. The fact is according to his evidence, that he gave the cash, the VT500.000, to Mr. Hospmander the next morning Thursday, when the banks were open. Why not wait until Thursday morning, go to the bank, cash it and take the money up to Mr. Hospmander and deliver it to him at exactly the same time on Thursday morning? It is ridiculous that in those circumstances someone would be looking around on Wednesday night to find some person to cash a cheque which is made not into the name of that person, and not payable to that person.
    
46. Anyway Mr. Hospmander only needed the money when he went to Malekula to distribute it. And Mr. Lesines said that he did not go until the Saturday anyway. So what was the hurry to cash the cheque at night time on Wednesday night? There was none. Furthermore, if he really wanted to cash a cheque on Wednesday night, even though there was no sensible reason to do so, why ring Salendra? What would make Mr. Lesines think that he, Salendra, had VT500.000 available in cash at night when Salendra was not even from Vanuatu and does not even have a business in Vanuatu? Why would Mr. Lesines think Salendra would cash a Vanuatu cheque in vatu made out to someone else’s name? It is simply nonsense to expect the Court or anyone really to believe that story, it does not make sense. As well as not making sense it is in conflict with the statements made to the Police, direct conflict.
    
47. Despite the various matters attested to by Messrs. Hospmander and Lesines, neither of them said that there was any duress or force or threat of any nature made to them by Mr. Tambe or anyone else to make them sign those statements. I would accept that they would have been ill at ease, uncomfortable and probably even afraid in the Police station. I imagine that most suspects would feel like that when they were inside the Police station being interviewed by the Police.
    
48. However that does not explain how the details in the Police statement got there, except that they told the Police about them. And it does not explain how all these things about selling the cheque for a million vatu were put in the statement, read out by the Police and not only did they each sign their statement but according to their evidence as I understood it they did not even make a protest to the Police officer that they never said those things that were read out and that those things read out were untrue.
    
49. If they had not said those things, I am sure they would have mentioned that to the Police at that time. If they were untrue, I am sure they would have mentioned it to the Police. I draw the conclusion that they have simply changed their story from what they told the Police.
    
50. What they said in Court was also is in conflict with what Mr. Watson and Mr. Sacsac said that Hospmander had told them. Mr. Watson and Mr. Sacsac gave a very detailed account of what Mr. Hospmander had told them. Lots of little details in it. They could not have imagined all of that detailed account. There is no reason whatever suggested for them to have come to Court and told the Court a whole lot of lies about what Mr. Hospmander said to them. But of course there is every reason for Mr. Hospmander now to deny it.
    
51. I am quite satisfied that these two witnesses Mrs. Watson and Sacsac were telling the truth and that means that Mr. Hospmander was not telling the truth when he gave his evidence in Court. So I reject the evidence of both the accused, as not being believable and not being truthful. Nevertheless, the Court must still look at all the evidence and put aside the accused’s evidence to see whether the charges have been proven. Having put aside their evidence, it is still necessary for the Court to make such findings as it can in relation to what happened to the cheque.
    
52. The story that Mr. Hospmander told Mr. Watson and Mr. Sacsac is different in part from the story that he and Mr. Lesines both told to the Police and which is contained in their written statements signed by them. But some of the details or some of the main themes are consistent.
    
53. I am able to make some findings about what happened. I find:
    
    1. the cheque was indeed given to Salendra on the basis that he was to pay VT 1.000.000 for it. There is no other reason for the accused to have given the cheque to him. If they were only to have got VT500.000 as they said in evidence, they would have simply put it in the bank. That was the obvious easy thing that was always available to do.
       
    2. I find that both accused were party to giving the cheque to Salendra. On one story, Hospmander handed it over, on the other story Lesines handed it over. On both stories it was Lesines who was the go between. I cannot say for sure, having heard the evidence and heard both stories, each of which came originally from the accused or one of them, who actually handed it over or even if both of them were present at that time. I am however satisfied that Mr. Hospmander deliberately gave the cheque to Salendra, either directly or through Mr. Lesines knowing who it was that it was being given to. I am also satisfied that Mr. Lesines arranged the hand over to Salendra and he also either gave it to Salendra directly or he arranged for Mr. Hospmander to give it over directly.
       
    3. I am satisfied that they intended to personally keep and share between themselves the extra VT500.000 over and above the face value of the cheque. Whether they actually got it, I cannot be certain. On Hospmander’s story to the Parliament officers they did get it, or he got it. On their police statements they both say that they are still waiting for it, which is just possible because undoubtedly Mr. Salendra is a very dishonest person. Although I have to say it is far more likely that they have received the extra VT500.000 and did not tell the truth about that to the Police, in an effort to lessen their responsibility for what happened. It is not necessary for me to make a certain finding about whether the extra VT500.000 was actually received, but I am satisfied that was the deal that they had with Salendra.
       
    4. I am also satisfied that the timing given in the Police statement is much closer to the correct timing of when they handed the cheque to Salendra. That is close to the 27th June, if not on the 27th June. I reach that conclusion because the altered cheque the forged cheque was in fact presented at the National Bank altered on the 27th June and I am sure that Salendra would act very quickly once he got hold of a cheque to forge, he would not be sitting on it for weeks.
       
54. I turn to consider whether the charge has been proven in the case of each accused. I keep in mind that the onus of proof of the charge and each element of the charge is on the prosecution throughout. Even though the accused gave evidence that does not alter the onus of proof which remains on the prosecution throughout the case. I have said that I do not believe the accused’s evidence. It does not mean that they are automatically to be found guilty. The Court must simply put aside their evidence and consider whether on the remainder of the evidence the Prosecution has proven the charge.
    
55. I record that the standard of proof in this case as in all criminal cases is beyond reasonable doubt. I keep in mind also that this is a joint trial, and although the accused are charged jointly, I have to consider the evidence against each of the accused separately and not reason that because one is guilty the other must also be automatically guilty. As I have already said that principle applies particularly to the out of Court statements of the accused, which are admissible evidence only in relation to the person who made it.
    
56. I now turn to the elements of the charge that have to be proven. Every criminal charge can be broken down into a number of elements, usually two or more, each one of which have to be proven before an accused can be found guilty. In this case Aiding a Forgery, there are three elements that have to be proven. Firstly, that a crime, the crime of forgery, was committed by the principal offender Salendra. Secondly it must be proven that the accused aided, that is helped and assisted the principal offender Salendra to commit that forgery. They did something to assist it, that has to be proven. Finally it has to be proven that when they did so, they had the knowledge and intention required by the law before they can be found guilty and I will discuss that issue a little more deeply further on.
    
57. The accused did not really dispute the first two elements. They have formally admitted the cheque 2154172 was forged after Salendra came into possession of it. And they acknowledged that each of them played a part by supplying the cheque to him on which the forgery was carried out, and in that way assisted the forgery.
    
58. However they do dispute they are guilty of any offence because they deny that they knew that Salendra was going to dishonestly alter the cheque. Even though they do not dispute two of the elements, the Court itself must still be satisfied that all three elements had been proven before it can convict. So I am going to consider each one of them as I must, separately.
    
59. The first thing that has to be proven is that Salendra forged the cheque. Forgery is defined in Section 139 of our Penal Code Act, it provides:
    

(1) Forgery is making a false document knowing it to be false with the intent that it shall in any way be used or acted upon as genuine whether within the Republic or not or that some person shall be induced by the belief that it is genuine to do or refrain from doing anything, whether within the Republic or not.

Subsection 2 provides: "For the purpose of this section the expression making a false document includes making any material alteration and a genuine document, whether by addition, insertion, obliteration, erasure, removal or otherwise".

60. I am satisfied that Salendra forged the cheque because:
    
    • cheque 2154172 was originally made out to Unua Community for VT500.000. It was given to Salendra Sen Sinha who had no right to it and no means of accessing the bank account of Unua Community. The same cheque was later presented at the National Bank and the payee now showed as Sandie Leo and the amount now showed as VT11.805.00 and after it was deposited, the amount of it was immediately drawn.
      
    • The cheque itself actually shows visible evidence of erasure, if you look closely at it and it was produced as an exhibit. It is visible to the naked eye that there has been some erasure where the amount of the cheque is given in words and figures.
      
    • The overwhelming inference in those circumstances is the cheque has been altered after it came into the possession of Salendra by erasure of the original payee and amount and the insertion of a new payee and a new amount and that had been done knowingly with intent that it would be acted upon as genuine, as indeed it was. It is also a reasonable and logical inference that the forger was the person the cheque was given to, Salendra.
      
61. Second it has to be proven that the accused did an act which assisted him to commit that forgery. The act relied upon by the prosecution is the supply to him of the cheque which was a subject of the forgery. For the reasons already discussed I am satisfied that each of the accused took part in the supply of the cheque to Salendra. I am also satisfied that that action assisted Salendra to commit the forgery, because it gave him the raw material on which the forgery was carried out. He could not have forged that cheque unless it was given to him.
    
62. Finally the accused must be proven to have had what lawyers call a guilty mind. It means it has to be proven that they had the required intention and knowledge, about what would happen. This is the issue which the accused dispute in this case and it is necessary to articulate just what knowledge and intention the prosecution must prove in a case like this, where the persons who do something which helps the crime to be committed by someone else, do it before the crime has actually been committed.
    
63. First of all the accused must intend to hand over the cheque to the forger Salendra. They would not be guilty for example if they had somehow accidentally given the cheque to him. There is no doubt that they intended to give it to him.
    
64. They must also have some knowledge about what he would do with it. But it is not necessary to prove that they knew exactly what would happen. On that issue I quote, as a correct statement of the law the following extract from the decision of the English Court of Appeal in a case called R v. Bryce in which the Court said this:
    

"In the context of a person charged as an accessory who has rendered assistance prior to the commission of the crime by the perpetrator, the circumstances in respect of which knowledge is sufficient for liability, may go wider than that of the specific crime actually committed. This is because it is inappropriate and unworkable to require knowledge of the essential matters constituting the event in a situation where the offence is yet to be committed in the future, or by a person whose precise intention, the accused cannot be certain in advance. It is thus sufficient for the accused to have knowledge of the type of crime in contemplation; thus where a person supplied equipment to be used in the course of committing an offence of a particular type, he is guilty of aiding and abetting the commission of any such offence committed by the person to whom he supplied the equipment, providing the he knows the purpose to which the equipment is to be put or realizes that there is a real possibility that it will be used for that purpose and the equipment is actually used for that purpose".

I should add that the type of crime in contemplation may cover a number of different specific offences and that proposition is supported by a case called Director of Public Prosecutions for Northern Ireland v. Maxwell.

65. As well as that the Court in the Bryce case held that the accused must have intended to assist the principal offender as opposed to intending to prevent or hinder. That does not mean that it has to be proven that the motive in helping him was so that the crime would be committed and it does not have to be proven that they wanted the crime to happen.
    
66. To summarize what has to be proven in relation to the intent and knowledge of the accused is this:
    

a) that they deliberately took part in supplying the cheque to Salendra, realizing that what they were doing was capable of assisting him to commit the type of offence which he did commit.

b) That at that time they foresaw that that type of offending by Salendra was a real or substantial risk or a real possibility.

c) That when they did it, they intended to assist him in what he might do, even though they might not have supplied the cheque for that reason and even if they would have preferred that he did not use it in that way.

67. I do not see the position of each accused as being significantly different in this respect. It seems evident that the accused Lesines had a closer association with Salendra than Mr. Hospmander. And I suspect he had much more to do with Salendra than he acknowledged in Court and that he knew much more about what Salendra was up to than he said in Court. But hard evidence of that is lacking. I do infer that Mr. Lesines would have passed on to Hospmander what he knew about Salendra.
    
68. I am satisfied that they knew that the cheque would be fraudulently used in order to dishonestly obtain money. They may not have known exactly what Salendra would do, but they must have known that alteration of the cheque was a real or substantial risk or a real possibility. They must have known this because they were aware of the following circumstances:
    
    1. that Salendra was not entitled to the Government cheque that they gave to him.
    2. That it was made out to Unua Community and that Salendra had no access or ability to draw on the Unua Community account.
    3. They knew that Salendra was not from Vanuatu and knew he had no legitimate business here. I suspect that in fact they may have known more than that about Salendra but there is no hard evidence about that.
    4. They must have known that the whole transaction was dishonest. It was a Unua Community cheque they were selling for double its face value and in my judgment the accused were going to pocket themselves the difference. They were carrying that transaction out with a foreigner who had no legitimate business in Vanuatu known to them and carrying it out outside office hours in a bar.
    5. They knew that Salendra has agreed to pay them twice the face value of the cheque. The extra amount he was paying was large, VT500.000. They must have known that he would not pay that sum, unless he could use that cheque to get an even greater amount for himself.
       
69. They must have known that there is no way a cheque for VT500.000 can be used to get VT1.000.000 or more except by using it dishonestly and illegally, and they must have known that tampering with the cheque ie. forgery was a real possibility and even a probability in the circumstances. I am satisfied also that when they gave him the cheque in that knowledge they intended to assist him in using it fraudulently and in order to obtain money dishonestly.
    
70. Their motive of course was the extra VT500.000 and they probably did not care what Salendra did with the cheque once they got their money. But nevertheless in legal terms they have intention of assisting him. They certainly did not give him the cheque with any other intention. So I find the third element, the guilty mind, proven in respect of both accused and they are convicted of the charge Count 1.
    

Dated at Port Vila, this 14th day of March, 2008

BY THE COURT

C.N. TUOHY
Judge