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Prasad v The State [1995] FJHC 158; Haa0024j.95b (25 October 1995)

IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 0024 OF 1995

Between:

GYANENDRA PRASAD
s/o Girja Prasad
Appellant

- and -

THE STATE
Respondent

Mr. M. Sadiq for the Appellant
Ms. R. Shafiq for the Respondent

JUDGMENT

On the 30th of March 1995 the appellant was convicted by the Labasa Magistrate Court after a defended trial, on a charge of forging a Bank of New Zealand cheque and subsequently uttering the same knowing it to have been forged. Upon his conviction the appellant was sentenced on the Forgery count, to a sentence of 9 months imprisonment suspended for 18 months and on the count of Uttering, a fine of $350 was imposed in default 9 months imprisonment.

The appellant has appealed against both the convictions and sentences on the basis of 5 broad grounds of appeal with ground (c) identifying no less than six (6) 'items of evidence' which it is claimed adversely reflected upon the credibility and evidence of the principal prosecution witness, Renuka Rani the agency teller, who dealt with the appellant when he deposited the cheque.

I do not propose however to deal seriatim with the grounds of appeal which were ably argued together by learned counsel for the appellant who also helpfully filed a comprehensive written submission.

Despite the somewhat lengthy record of proceedings there is no need to deal in any detail with the facts given that it is common ground that the B.N.Z. cheque in question was forged and given counsel's concession:

"(that) In this case, the question is - 'who had forged the cheque?' The learned magistrate had rightly pointed out (p.29) - 'There are only two persons who could have interpolated and forged the cheque after it reached the accused's hands and they are the accused and (sic) (the) teller RENUKA RANI (P.W.4)."

In this latter regard both the accused and the teller gave evidence at the trial albeit that the accused's evidence took the form of an unsworn statement and therefore was not tested under cross-examination.

The learned trial magistrate in a short, clear judgment first deals with the 'formal' evidence surrounding the creation and posting of the relevant Bank of New
Zealand cheque (Ex.1) to the accused and the detection of the forgery of the cheque, then he sets out the material evidence of the teller and the accused recording inter alia their respective denials of either noticing any discrepancies on the cheque and/or forging it.

Faced with such diametrically opposing denials the primary issue before the learned trial magistrate was essentially reduced to one of assessing the credibility between the agency teller and the accused have regards to the evidence in the case and always bearing in mind the burden and standard of proof which lay upon the prosecution to establish its case beyond a reasonable doubt.

In this regard I note that the learned trial magistrate states in his judgment:

"The defence submits that as in a government cheque for less than one hundred dollars the cages for thousands and hundreds are cancelled by a line as in the case of the forged cheque in this case, the cashier could and should have found the forgery easily and had the accused caught redhanded."

In that passage the learned trial magistrate was clearly concerned with the teller's apparent failure to detect the forged additions on the face of the cheque (Ex.1). However after a closer examination of the nature of the cancellation line the trial magistrate concluded that the teller's omission "... was understandable."

As to the learned trial magistrate's assessment of the over-all credibility of the agency teller, he said:

"I have carefully observed the demeanour of the witness Renuka Rani. She struck me as a straight forward and honest witness. I don't believe that she has interpolated and forged the cheque in question."

and later, after rejecting the accused's claim that he had signed a blank deposit slip, the judgment continues:

"I believe the prosecution witness Renuka Rani and don't believe the accused."

In those passages the trial magistrate has clearly indicated a preference for the evidence of the agency teller over the accused's unsworn denials and assertions and it is trite that such a clear assessment of credibility by a trial court based substantially on demeanour, ought not to be lightly overturned by an appellate court which has had neither advantage of seeing or hearing the witness. (per Grant J. in Jan Barkat Ali v. R. 18 F.L.R. 129, and Mohammed Abdul Razak v. R. 19 F.L.R. 1 at 4; and per Hyne C.J. in Mohammed Hakim Dean v. Dukh Bhanyan Sharma 4 F.L.R. 183)

Learned counsel for the appellant sought however to overcome the trial magistrate's finding by a close analysis of a number of isolated answers extracted from the evidence which it was suggested showed the agency teller to be unreliable such as, her noticing 'nothing unusual' about the cheque (Ex.1), and her filling in the relevant deposit slip (Ex.2).

I confess that having carefully considered these various collateral matters in the context in which they occur in the evidence I do not find them of any real gravity such as to persuade me to depart from the general principle enunciated above.

Then learned counsel laid great emphasis on an undisputed alteration made by the agency teller in the relevant entry recording the accused's transaction in the Agents Transaction Statement (Ex.3 at p.39 of the record) and entered by her soon after the transaction had been completed.

The alteration showed that soon after the relevant transaction had been completed the agency teller had entered an incorrect figure in the 'cash' column recording the accused's deposit which was subsequently changed to '100' to coincide with the relevant deposit slip (Ex.2). This it was submitted 'gives the lie' to the teller's credibility. I cannot agree.

In the first place, this particular matter does not appear to have been raised in any meaningful manner in the cross-examination of the agency teller as it should have been, and more importantly, it is sufficiently clear from the relevant alteration that the figure which is over-written is not "300" as claimed by learned counsel for the appellant, but "313", which is the total dollar value of both the cash and the cheque deposited by the accused whichever version is accepted by the trial magistrate.

Suffice it to say the alteration in the Agents Transaction Statement (Ex.3) does not per se adversely impact upon the agency teller's credibility. Quite simply, in State Counsel's submission: 'It was a mistake.'

Finally counsel for the appellant submitted that the trial magistrate erred in failing to consider and/or look for corroboration of the evidence of the agency teller who although not strictly an 'accomplice' in terms of Lord Simond's definition in Davis v. D.P.P. (1954) 1 ALL E.R. 507 might nevertheless be "... regarded as a person having a purpose of (her) own to serve (where) the warning against uncorroborated evidence should be given." (per Edmund-Davies L.J. in R. v. Prater (1960) 44 Cr. App. R. 83 at 86.) Again I cannot agree.

In the first place the dictum in Praters case has been doubted by Winn J. in R. v. Stannard (1964) 48 Cr. App. 81 at 91 and more recently by the Court of Appeal in R. v. Beck (1982) 74 Cr. App. R. 221 where it was said per Ackner L.J. at p.227:

"We take the view that if and in so far as Prater was not a decision on its particular facts, it in no way extended the law as laid down in Davies case ... in short, the phrase (op. cit) is related to cases where witnesses may be participants or involved in the crime charged."

Secondly, the narrow ambit of the issues and facts in this case makes it quite plain that the learned trial magistrate was fully aware that he had to choose between the two opposing versions given by the accused on the one hand and the agency teller on the other.

In all the circumstances this appeal must be and is hereby dismissed. Needless to say the sentences do not therefore fall to be considered.

(D.V. Fatiaki)
JUDGE

At Labasa,
25th October, 1995.

HAA0024J.95B