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State v Baine [1989] PGNC 132; [1990] PNGLR 1; N777 (25 September 1989)

N777

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

BAINE

Waigani
Brunton AJ
19-21 September 1989
25 September 1989

CRIMINAL LAW - Evidence - Handwriting - Comparison of - Expert evidence not essential - Judge sitting alone to warn himself - Evidence Act (Ch No 48), s 31.

EVIDENCE - Handwriting - Comparison of - Expert evidence not essential - Judge sitting alone to warn himself - Evidence Act (Ch No 48), s 31.

The Evidence Act (Ch No 48), s 31, provides:

"A comparison of a disputed handwriting with a sample of handwriting proved, to the satisfaction of the Court, to be genuine may be made by witnesses, and the handwritings and the testimony of the witnesses respecting them may be submitted to the Court as evidence of the genuineness or otherwise of the handwriting in dispute."

Held:

Although expert evidence is not essential for a tribunal of fact to come to a conclusion on a comparison of disputed handwriting, a judge sitting alone in a criminal trial must warn himself of the dangers involved in proceeding without expert testimony.

O’Sullivan v The Queen (1969) 53 Cr App R 274 at 282, adopted and applied.

R v Hobart Magalu [1974] PNGLR 188, considered.

Cases Cited

The following cases are cited in the reported judgment:

O’Sullivan v The Queen (1969) 53 Cr App R 274.
R v Hobart Magalu [1974] PNGLR 188.

Trial

This was the trial of an accused on charges of misappropriation under s 383a(1)(a) of the Criminal Code (Ch No 262).

Counsel:

W Soi and L K Kalinoe, for the State.
M M Doiwa, for the accused.
Cur adv vult

THE CHARGE

BRUNTON AJ.: The accused was indicted under s 383a(1)(a) of the Criminal Code (Ch No 262) that between 30 December 1982 and November 1983, at Kupiano, he misappropriated (dishonestly applied to his own use) K7,800.50, which was the property of the State.

The State case was that the accused was the plant and transport clerk at Kupiano between 1982 and 1983. During part of that period his father-in-law Mr Lawrence, in whose house he lived, was the district office driver. Mr Lawrence bought a red utility which was available for hire. The accused acted as an agent for his father-in-law, and looked after the vehicle. From time to time the vehicle was hired to various government officers at Kupiano in the performance of their duties. It was alleged that the accused made claims against the State and that some of the claims were false, for vehicle hire that did not take place at all. In other instances it was alleged that the vehicle hire did take place, but that the accused was paid twice for the service. As a result of the false claims, and duplicate claims it was alleged that the accused dishonestly received money from the State and that he applied it to his own use.

THE ELEMENTS OF THE OFFENCE

The State carried the onus of establishing beyond reasonable doubt that the accused (a person):

(a) dishonestly

(b) applied to his own use, or the use of another

(c) property belonging to another.

The evidence before the Court showed that the accused had received cash (property), belonging to another (the State) for vehicle hire. Exhibit E, tendered by the State, which was a schedule of paid vouchers, showed that the State had paid a total of K20,033 to Mrs Mareta Lawrence, the mother-in-law of the accused. On the face of that document the accused confirmed that he received K15,881, which was payment for the vehicle hire by the State of the Lawrence’s utility.

Of course there is nothing criminal about a business hiring vehicles to the State, so two important issues were outstanding in this case. The first was whether or not the accused had received any portion of the K20,033 "dishonestly", and secondly, how much money was it that he had received "dishonestly", as opposed to how much money he had received as part of a business arrangement? Here, the second issue was entwined within the first, because it was only possible to identify the quantum of this misappropriated property when it was established that a particular transaction was dishonest.

THE GENERAL EXPENSE FORM

The State tendered in evidence 76 general expense (FF4’s) which were the vouchers for payments made to Mrs Mareta Lawrence of Maopa No 1 Village, Kupiano, in respect of private vehicle hire, between 18 December 1982 and 27 October 1983.

These vouchers were tendered in two exhibits and each voucher was identified by a separate "annexure number". Exhibit B included annexures 1.1 to 1.61. Exhibit C included annexures 2.1 to 2.15. Mr Perfecto Nunez, assistant chief investigator with the Department of Finance Investigations Branch testified that the annexures prefixed by the number one (exhibit B) were the vouchers for which the accused admitted receiving payment. Those annexures prefixed with a two (exhibit C) were those for which the accused denied he had received money.

The vouchers in exhibit C all bear a signature of the "Recipient" (sic), which was testified by Wari Ona as indicating that the person who signed as "Recipient" received the sum indicated. Mr Ona testified he had known the accused for 10 years at Kupiano. He identified the accused’s signature on annexures 2.1, 2.3, 2.8, 2.13, 2.14.

HANDWRITING

I have examined the handwriting of the accused in the form of his signature in exhibit B, being those general expenses vouchers for which the accused admits he received the money. I have also seen the accused’s signature at question 28 of exhibit D, which the accused provided to Mr Nunez, when he was interviewed by Mr Nunez.

Section 31 of the Evidence Act (Ch No 48) says:

"A comparison of a disputed handwriting with a sample of handwriting proved, to the satisfaction of the Court, to be genuine may be made by witnesses, and the handwritings and the testimony of the witnesses respecting them may be submitted to the Court as evidence of the genuineness or otherwise of the handwriting in dispute."

The State tendered in evidence a report, in the form of a letter by Mr Nunez to the Commissioner of Police on the alleged misappropriation at Kupiano. At par 1.7.8 of the report Mr Nunez said:

"Mr Baine confirmed receiving full payment and assumed full responsibility for sixty-one (61) vouchers as per attached list which were not crossed out (see Annexes 1.1 to 1.61) all amounting to K15,881.

As may be noted in the attached vouchers (see Annexes 2.1 to 2.15) we do not believe that those signatures were not to Mr Baine. There was no visible difference between those signatures in the vouchers he confirmed signing as Claimant and Receipient (see Annexes 1.1 to 1.61) and those signatures he denied signing (see Annexes 2.1 to 2.15)".
There was evidence before the Court that the signatures in exhibit C may well have been those of the accused. The question arises, can the Court, as a tribunal of fact, make a comparison between those exhibits which the accused does not deny contain his signature, and those exhibits in which the signature has been asserted by the accused not to his own?

The basic proposition of evidence in criminal matters is that the State must prove its case beyond reasonable doubt. This does not mean that the Court must stand idle and refuse to draw inferences when the primary facts are properly before it. If inferences can properly be drawn from primary facts then they should be drawn.

But there are certain classes of evidence about which a tribunal of fact should be careful. The comparisons to be drawn from fingerprint evidence are one area where caution is needed; and the comparisons drawn from handwriting are another.

The law is that although expert evidence is not essential for a tribunal of fact to come to a conclusion about comparative handwritings, there is danger involved when a tribunal of fact proceeds without expert testimony (see O’Sullivan v The Queen (1969) 53 Cr App R 274 at 282, per Winn LJ). In that case the English Court of Appeal, Criminal Division, was dealing with a situation in which disputed documents had already been put before the jury as part of the probative material of the case. The Recorder, at first instance, went to great pains to tell the jury about the dangers of making comparisons on the evidence of the signatures before them. The Court of Appeal dismissed O’Sullivan’s appeal because there was "ample evidence to support the conviction". In the course of his judgment Winn LJ said (at 282):

"The fact remains that there is a very real danger where the jury make such comparisons, but as a matter of practical reality all that can be done is to ask them not to make the comparisons themselves and to have vividly in mind the fact that they are not qualified to make comparisons. It is terribly risky for jurors to attempt comparisons of writing unless they have very special training in this particular science ..."

The dispute over the authenticity of the signatures in the case before me occurred during the early investigation of the alleged offences. It should have been clear to the State prosecutors who prepared this case that the accused may well have continued his dispute over the signatures, and that if the State wished to prove the disputed documents, it would need the testimony of a handwriting expert. I am not a handwriting expert and neither was Mr Nunez. The Court can make comparisons, but the injunction of the law is that it is very dangerous to do so.

In the pre-Independence decision of R v Hobart Magalu [1974] PNGLR 188, Frost A-CJ, as he then was, held that the precursor to s 31 of the Evidence Act, the Evidence and Discovery (Papua) Act 1913-1964, s 66, did not prevent the court from reaching its own conclusions as to the genuineness or otherwise of writing in dispute by reason of the absence of any expert witness called to make a comparison of the writings. Nevertheless his Honour reminded himself that a judge sitting alone should bear in mind the danger of reaching a conclusion upon a comparison of the handwriting when unassisted by expert evidence. His Honour did look at the signatures before him and made a comparison and found it would be unsafe to conclude that the disputed cheque was signed by the accused (at 194).

In my view, the rule in O’Sullivan v The Queen (1969) 53 Cr App R 274 at 282 is both applicable and appropriate to the circumstances of Papua New Guinea and is not inconsistent with custom, and by virtue of the Constitution, Sch 2.2, is part of the Underlying Law.

Unless there is other evidence which may link the accused with the annexures in exhibit C, they cannot be proven, at present, to have been signed by the accused.

As it was, the State only pursued two of the annexures in exhibit C; these were annexures 2.13 and 2.14. In relation to annexure 2.13, when his own counsel asked him, in evidence in chief, to explain why there appeared to be double payment, the accused said there had been a typist’s error in typing up the vouchers. When he was asked to explain the apparent double payment that had occurred between annexures 2.13 and 2.14, the accused said that he must have made a mistake.

On cross-examination, Mr Kalinoe, referring to annexures 1.44 and 2.13, put to the accused:

"Q. The 12th to 13th July are claimed in both vouchers — they are double claims?

A. No. On 2.13, it should be 11th of July 1983 and the 22nd of July 1983. They hired the vehicle on the 11th of July 1983, and they got it out again on the 22nd of July 1983. I can remember it. I can recall some of the claims."

On cross-examination the accused also admitted making a mistake, which resulted in a double payment, on annexures 2.13 and 2.14. In short, there was no denial on either evidence in chief or cross-examination that the vouchers were other than genuine, and the accused had changed his defence from a denial of authenticity, to one of typist’s error, and of mistakes.

I find beyond reasonable doubt that annexures 2.13 and 2.14 in exhibit C are bona fide general expenses vouchers, and that the accused signed those vouchers as claimant and recipient. The change of story does little to assist the accused’s credibility.

By the close of the evidence the allegations first made in the indictment against the accused had narrowed. The allegations were reduced to two claims that the accused had made totally false claims in respect of vehicle hire that did not take place at all and to nine separate claims that the accused had received double payment in respect of vehicle hire.

[His Honour then considered the evidence relating to proof of the offence in a manner not calling for report — concluding]:

Accordingly I convict the accused for the offence alleged in the indictment, although the evidence shows that the accused misappropriated a good deal more than K7,800.50.

Verdict of guilty

___________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.