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State v Magracia [1984] PGNC 36; [1984] PNGLR 117; N464 (22 March 1984)

N464

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

MAGRACIA

Waigani
Kaputin J

7 March 1984
9 March 1984
13-14 March 1984
16 March 1984
22 March 1984

CRIMINAL LAW - Particular offences - Possession of forged currency - Lawful excuse as defence - Requires proof that lawfully obtained - Criminal Code (Ch. No. 262), s. 158.

The Criminal Code (Ch. No. 262), s. 158, provides that "a person who, without lawful excuse (proof of which is on him), purchases or receives from any person, or has in his possession, a forgery of a current note is guilty of a crime".

Held

(1) Once the State has established possession of the forged note at the material time the onus is on the accused to satisfy the court on the balance of probabilities that he had a lawful excuse for having it in his possession.

(2) Lawful excuse for possession of a forged note requires proof that the note was lawfully obtained: lack of knowledge of the forged nature of the note is not of itself sufficient.

Winkle v. Wiltshire [1951] 1 K.B. 684, applied.

Cases Cited

Dickins v. Gill [1896] UKLawRpKQB 104; [1896] 2 Q.B. 310.
Ibrahim v. The King [1914] A.C. 599; 30 T.L.R. 383.
R. v. Carr-Braint [1943] K.B. 607; 2 All E.R. 156.
S.C.R. No. 1 of 1980; Re s. 22a(b) of the Police Offences Act (Papua) 1912 (repealed) [1981] P.N.G.L.R. 28.
S.C.R. No. 2 of 1980; Re s. 14(2) of the Summary Offences Act 1977 [1981] P.N.G.L.R. 50.
Winkle v. Wiltshire [1951] 1 K.B. 684.
Wong Pooh Yin alias Kwang Sin v. Public Prosecutor [1955] A.C. 93.

Trial

This was the trial on a charge of being in possession of a forgery of a current note without lawful excuse contrary to the Criminal Code (Ch. No. 262), s. 158.

Counsel

J. Byrne, for the State.
D. McMillan, for the accused.

22 March 1984

KAPUTIN J: Felicisimo Magracia stands trial upon indictment of a charge that he on 28 November 1983 in Papua New Guinea, without lawful excuse had in his possession a forgery of a current K20 note, serial number SBN660522. The charge is laid under s. 158 of the Criminal Code (Ch. No. 262) which reads:

"Possession of forged notes: A person who, without lawful excuse (proof of which is on him), purchases or receives from any person, or has in his possession, a forgery of a current note is guilty of a crime."

The defences are: first that he was not in possession of a forged note; secondly that if the court finds that he has possession of a forged note then the defence is that he did not know from which transaction he had acquired the note, that there was a possibility he could have obtained it from the bank at Jackson Airport and that his ignorance as to the nature of the note that it was a forgery, amounts to a lawful excuse. In view of the evidence before the court the way these defences are framed appears strange. In this charge the onus of proof to establish lawful excuse, while being in possession of a forged note, lies on the accused. This shifting of onus founded upon considerations of public policy, is a statutory creation which applies in certain cases as in the present case. This is empowered by s. 37(4)(a) of the Constitution of Papua New Guinea which means that it is constitutional to do so. Two Supreme Court decisions have confirmed that the approach is constitutional and is now part of the law of this country. The two authorities are: S.C.R. No. 1 of 1980; Re s. 22a(b) of the Police Offences Act (Papua) [1981] P.N.G.L.R. 28, and S.C.R. No. 2 of 1980; Re s. 14(2) of the Summary Offences Act [1981] P.N.G.L.R. 50. Section 37(4)(a) and they clearly state the policy for such shift of onus, which provides:

"(4) A person charged with an offence:

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge; ..."

I also take it to be part of the law now in this country that the burden of proof in such a situation, is on the balance of probabilities. One of the common law authorities which throws light on the issue was R. v. Carr- Braint [1943] All E.R. 156. In this case the appellant was charged with the offence of corruptly making a gift or loan to a person in the employ of the War Department as an inducement to show, or as a reward for showing, favour to him. The charge was laid under the Prevention of Corruption Act 1906 (Imp.) and on such a charge the Prevention of Corruption Act 1916 (Imp.), s. 2, provides that a consideration shall be deemed to be given corruptly unless the contrary is proved. The judge directed the jury that the onus of proving his innocence lay on the appellant and that the burden of proof resting on him to negative corruption was as heavy as that ordinarily resting on the prosecution, that is to say, he had to prove his innocence beyond a reasonable doubt. However, it was held that the onus on the appellant was only to satisfy the jury of the probability of that which he was called upon to establish and, if he satisfied the jury that the probability was that the gift was made innocently, the statutory presumption was rebutted and he was entitled to be acquitted. In their discussion the Court of Criminal Appeal at 158-159 said:

"Moreover, it seems to us to be in accord with the principle of our law expressed in the well known passage in the judgment of Viscount Sankey L.C., in Woolmington v. Director of Public Prosecutions [1935] A.C. 462; Digest Supp.; [1935] UKHL 1; 104 L.J.K.B. 433; 153 L.T. 232; 25 Cr. App. Rep. 72 at 481:

‘No matter what the charge or where the trial the principle that the prosecution must prove the guilt or the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’

We see no reason why the rebuttable presumption created by this section and the words ‘unless the contrary is proved’ should not be construed in the same manner as similar words in other statutes, or similar presumptions at common law, for instance, the presumption of sanity in the case of an accused person who is setting up the defence of insanity. We agree with and adopt for the purpose of this judgment the language of Lord Hailsham L.C., in delivering the judgment of the Privy Council in Sodeman v. R. [1936] 2 All E.R. 1138; Digest Supp. Lord Hailsham L.C., observed as follows at 1140:

‘... the suggestion made by the petitioner was that the jury might have been misled by the judge’s language into the impression that the burden of proof resting on the accused to prove the insanity was as heavy as the burden of proof resting upon the prosecution to prove the facts which they had to establish. In fact there is no doubt that the burden of proof for the defence is not so onerous ... it is certainly plain that the burden in cases in which an accused has to prove insanity may fairly be stated as not being higher than the burden which rests upon a plaintiff or defendant in civil proceedings. That this is the law is not challenged.’

In so holding Lord Hailsham L.C., was in agreement with the decision of the majority of the Supreme Court of Canada in R. v. Clark (1921) 61 S.C.R. 608; 14 Digest 60 g; 2 W.W.R. 446 where Duff J., in the course of his judgment, expressed the view that the necessity for excluding doubt contained in the rule as to the onus upon the prosecution in criminal cases might be regarded as an exception founded upon considerations of public policy. There can be no consideration of public policy calling for similar stringency in the case of an accused person endeavouring to displace a rebuttable presumption."

and then concluded:

"In our judgment, in any case where, either by statute or at common law, some matter is presumed against an accused person ‘unless contrary is proved’, the jury should be directed that it is for them to decide whether the contrary is proved; that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond reasonable doubt: and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish."

Such onus is normally referred to as the legal or persuasive burden. The presumption of innocence still prevails, but the law casts upon the accused the legal burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge. This means that once the prosecution has established the elements which it is required to prove for a particular offence, and the defence has not displaced the burden of proof of the certain matters which it is required to prove on the balance of probabilities, then such would be fatal to the defence case.

In the instant case the State is required to prove that the K20 note in question is a forgery, and secondly that the accused had it in his possession at the relevant time. What the defence has to prove is that he had a lawful excuse for having it in his possession.

The State called evidence from a number of witnesses in support of its case. The defence did not call any evidence. The accused merely gave an unsworn statement from the dock to support its case.

[His Honour considered the evidence and concluded:]

My finding of facts from the evidence are therefore as follows: on the morning of 28 November 1983 the accused person arrived on a flight from Manila. After checking through Customs, he went to the bank situated near the exit of the international area at Jacksons Airport. The bank is a branch of the Papua New Guinea Banking Corporation. He changed 500 pesos into Papua New Guinea currency and got K28.25 for it. The receipt of the transaction is Ex. G which the teller Sili Kida co-signed before paying him the K28.25 in cash. The breakdown into the denominations is: one K20 note, one K5 note, one K2 note, one K1 coin and 25 toea. After getting his change he left with three other Filipinos — two men and a woman in a taxi for Hanuabada. These three other people were his friends. They had gone to Hanuabada to stay with a Papua New Guinean friend there. It is not known who had paid for the taxi that took them there. However, it is clear the fare was not paid by the accused. When they arrived at Hanuabada they had a rest and then around 12.00 noon they had lunch. After lunch they went for a ride. They got on a PMV bus and their first stop was at Koki Market. It was there that they went to James Kwan Store and purchased three bottles of drink. It was the accused who bought the drinks for them using a K20 note. It was in this transaction that it was alleged the accused had used a forged K20 note. Soon after the purchase the shop assistant Yugu discovered a strange looking K20 note and after consulting with his boss, he ran after the accused and his friends to ask them to return and explain what sort of a note it was. However he did not catch up with them, he was told they had caught a bus and left towards Boroko. Yugu waited there until a police vehicle came by. He stopped it and reported the matter to them. The police immediately set off to look for them, caught up with them at Boroko bus stop, and took them to Boroko police station for questioning. After the accused and his friends had left Koki, they went to Spring Garden Road at Gordons to bring some gifts to a Papua New Guinean friend of theirs, who was working there. After they had left there for Boroko they were picked up by the police.

There is no dispute as to the K20 note (Ex. C being a forgery. The defence has conceded that it is a counterfeit note.

The forged K20 note (Ex. C) was the one which was passed on to the shopkeeper Isori Yugu to pay for the drinks at the James Kwan Pty Ltd store at Koki.

The next issue is whether there was a possibility that the forged note might have been issued by the bank teller Kida at the bank at the airport. Taking all the evidence together of all the bank witnesses, including the teller Kida, who gave such evidence in this trial, I find that the forged note (Ex. C) was not issued by the teller at the bank.

Further, I find that the accused had possession of the forged note (Ex. C) and that he knew at that time that it was a counterfeit note.

The State, therefore, has established that the accused had possession of the forged K20 note at the material time. It was then for the accused to satisfy the court on the balance of probabilities that he had a lawful excuse for having it in his possession but as I have found the accused has not established any lawful excuse. The accused claimed that ignorance of the nature of the note, that is, he did not know that it was a counterfeit note, should be regarded as a lawful excuse. Yes, this can be so, but before this excuse can be accepted the accused has to establish that he had obtained the note at the airport bank, and without knowing it was a forged note, used it in the sale transaction. The defence does not have to show though whether or not the transaction at the bank was legal. There is no need to as it should be assumed that it was. However as I have found the defence has failed to establish such. The defence has also submitted that the accused could have got the forged note from other transactions and if he did not know what transactions he had got it from, all he has to establish is that he was unaware that it was a counterfeit. Of course, this could be so. But in this case there was only one known transaction established by evidence, which was the one at the airport bank before the one through which the accused was caught. So it was ridiculous to have framed the submission this way, knowing full well that there were no other transactions occurring in between the one at Koki. This was why I have said at the outset how illogical to have constructed the defence as such. In any event this submission also fails.

There are a number of authorities referred to mainly by the defence in the course of their submissions. They are Wong Pooh Yin alias Kwang Sin v. Public Prosecutor [1955] A.C. 93; Dickins v. Gill [1896] UKLawRpKQB 104; [1896] 2 Q.B. 310, and Winkle v. Wiltshire [1951] 1 K.B. 684.

These authorities do not help the defence much. However, they were useful in a sense that they elaborated on the area of law involved in the present case. They show that where necessary the law can be extended requiring the defence to prove certain additional facts depending on the circumstances of the case; and that such burden has to be discharged of course on the balance of probabilities. In Wong Pooh Yin’s case by the Emergency Regulations 1951 of the Federation of Malaya, reg. 4(1):

"Any person who without lawful excuse ... ‘carries ... (a) any firearm, without lawful authority therefore’ ... shall be guilty of an offence ...".

The appellant who was charged under reg. 4(1) of the Emergency Regulations with carrying a firearm without lawful authority, gave evidence to the effect that he was carrying the firearm while on his way to surrender to the police in compliance with directions contained in Government pamphlets calling on terrorists to surrender with their arms, that he wanted to surrender the firearm to the police, and that he had already tendered it to certain Temiars to whom he had made his first offer of surrender. He contended that that constituted a lawful excuse for carrying the firearm. He was convicted of the offence charged. It was conceded before the Board that the trial judge had withheld the plea of "lawful excuse" from the consideration of the assessors:

Held, that "lawful excuse", as used in the regulation, was an expression of wider import than "lawful authority" and raised a distinct issue. A mere change of intention on the part of a person accused under reg. 4(1) did not amount to a "lawful excuse" but in the present case evidence of the appellant was not confined to a mere change of his intention, for he sought also to show the reason for that change in the invitation contained in the Government pamphlets, and he described in addition, inter alia, his purported offer to surrender the weapon to the Temiars. There was no reason for holding the evidence about the pamphlets irrelevant on the issue of "lawful excuse". Circumstances supervening subsequent to an acquisition which was unlawful might nevertheless be capable of establishing a lawful excuse, and here the evidence of the appellant, if accepted went far enough to justify a finding that he was carrying the firearm on the occasion charged in the course of complying with the Government’s request and because he wanted and was waiting to surrender with it to the police and had actually tendered it to the Temiars. Such a finding would have warranted a verdict of "lawful excuse" and that issue ought to have been left to the assessors. It by no means followed that, had that course been taken, the appellant would have been acquitted, but he might have been, and in the light of Ibrahim v. The King [1914] A.C. 599, 615; 30 T.L.R. 383, the verdict could not stand: Dickins v’. Gill [1896] UKLawRpKQB 104; [1896] 2 Q.B. 310; 12 T.L.R. 427, and Winkle v. Wiltshire [1951] 1 K.B. 684; [1951] 1 T.L.R. 368; [1951] 1 All E.R. 479, distinguished.

In Dickins v. Gill, by s. 7(c) of the Post Office (Protection) Act 1884 (Imp.): "a person shall not make, or, unless he shows a lawful excuse, have in his possession, any die, plate, or instrument, or materials for making any fictitious stamp."

The proprietor of a newspaper circulating among stamp collectors and others caused a die to be made for him abroad, from which imitations or representations of a current colonial postage stamp could be produced. The only purpose for which the die was ordered by him, and was subsequently kept in his possession, was for making upon the pages of an illustrated stamp catalogue or newspaper, called "The Philatelist’s Supplement", illustrations in black and white and not in colours of the colonial stamp in question, this special supplement being intended for sale as part of his newspaper:

Held, that the possession of a die for making a false stamp, known to be such to its possessor, was, however innocent the use that he intended to make of it, a possession without lawful excuse within the meaning of the above section.

In Winkle v. Wiltshire, by s. 65(1), of the Post Office Act 1908 (Imp.), as applied to national insurance stamps by the Industrial Injuries (Stamps) Regulations 1948, "A person shall not ... (b) have in his possession, unless he shows a lawful excuse; any fictitious stamp ...".

Lord Goddard C.J. with which the two other members of the court agreed held that a person who proves that he innocently bought fictitious insurance stamps from an unauthorised or unlicensed seller does not establish a "lawful excuse" within the meaning of the regulation for having the stamps in his possession. To avail himself of the defence provided in it he must further show that he acquired the stamps as a result of a lawful transaction between himself and a seller legally entitled to deal in the stamps.

In explaining the reasons for decision in the case, at 687, Lord Goddard C.J. says:

"The magistrate accepted the good faith of the defendant in the transaction, and said: ‘I was of the opinion that if the defendant was acting unlawfully in this transaction, then anybody buying a postage stamp from a friend was also acting unlawfully and I could not accept this proposition.’ That, I think, shows the fallacy of confusing matters which may go very strongly in mitigation with matters which afford a defence. The magistrate went on: ‘I was satisfied that the defendant had shown a ‘lawful excuse’ for possessing these fictitious stamps and I accordingly dismissed the information.’

The only way in which that decision could possibly be upheld would be by saying that the words ‘without lawful excuse’ mean the same as ‘with knowledge’ because to support the magistrates’ finding the section would have to read: ‘A person shall not knowingly have in his possession any fictitious stamp, or shall not have in his possession any stamp which he knows to be fictitious.’ That, however, is not what the section says: the words are ‘without lawful excuse’, and it cannot be a lawful excuse to say: ‘I did not know that the stamps were "forged" because that could only be a defence if the buyer had bought the stamps properly from an official at a post office or from a licensed dealer, those being the only persons who have authority to sell stamps and who may do so without incurring a penalty. Of course, if a person bought stamps at a post office which turned out to be fictitious he would have a perfectly lawful excuse unless, indeed, he recognised and knew that they were fictitious; in which case he would not have the excuse.’ "

These authorities are self-explanatory.

In my opinion, according to the facts of the present case, where a man can only show that he did not know that the note was a forgery, that, in itself, is not a lawful excuse: he must go further and show that he acquired them lawfully; for unless he acquired them lawfully he will not have a lawful excuse. In this case I have not found to my satisfaction on the balance of probabilities that the defence has established any lawful excuse.

I have come to conclude therefore that upon the facts and reasons herein, I am satisfied that the State has proved its case beyond reasonable doubt. I find the accused guilty as charged and convict him accordingly.

Verdict of guilty.

__________________________________

Lawyer for the State: L. Gavara-Nanu, Public Prosecutor.
Lawyer for the accused: N. Kirriwom, Public Solicitor.

[1984] PNGLR 124 - Application of Allan Couglas Rush