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State v Wamna [1995] PGNC 23; N1342 (16 June 1995)

Unreported National Court Decisions

N1342

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 133 OF 1995
THE STATE
V
PETER WAMNA

Kundiawa

Injia J
7 June 1995
13 June 1995
16 June 1995

CRIMINAL LAW - Particular offence - In possession of a forged K50.00 current note - Without “lawful excuse” - Meaning of “lawful excuse” - Criminal Code (Ch No 262), S. 158, Constitution, S. 37 (2), 4 (a).

CRIMINAL LAW - Particular offence - In possession of a forged K50.00 current note - “Without lawful excuse (proof of which is on him)” - Onus and standard of proof of “lawful excuse” on the accused - Nature of onus and standard of proof - Criminal Code (Ch. No. 262), S.158, Constitution, S.37(2),4(a).

CRIMINAL LAW - Defence - Mistake of fact - Accused in possession of a forged K50.00 current note - Accused arrested when he tried to deposit forged K50.00 note in his passbook account with bank - Accused received money from proceeds of a customary bride price payment for his relative’s sister and believed it was a genuine K50.00 note - Whether accused held an honest and reasonable, but mistaken, belief that the forged K50.00 note was a genuine K50.00 note - Criminal Code, (Ch. 262), S.25.

Section 158 of the Criminal Code 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.” The accused was charged with having in his possession a forged K50.00 note. At the trial the accused admitted he had the forged K50.00 note but that he did not know that it was a forged K50.00 note and thought it was a genuine K50.00 note. He was given the forged note by his mother who got it from another person who received it as part of the proceeds of a customary bride price payment.

Held

(1) For the purposes of s 158 of the Criminal Code, “lawful excuse” means any exculpatory defence provided by the Criminal Code, the Constitution, or any other relevant statutory provision or written law, but does not include any exculpatory defence found in the underlying law, namely common law and customary law: Rex Kupu v Demas Doria [1988-89] PNGLR 1, State v Magracia [1984] PNGLR 117 considered but not followed.

(2) The onus is on the accused to satisfy the Court, on the balance of probabilities, the existence of a “lawful excuse” for being in possession of the forged current note: State v John Rumet Kaputin [1979] PNGLR 544, SCR No. 1 of 1980; Re S. 22 A(b) of Police Offences Act (Papua) [1981] PNGLR 28 applied.

(3) Where the accused relies on the defence of mistake of fact under S. 25 of the Criminal Code, he must satisfy the Court, on the balance of probabilities, that he held an honest and reasonable, but mistaken, belief that the forged note was a genuine current note.

(4) In the circumstances of the present case, the accused satisfactorily discharged the burden placed on him by persuading the Court that he honestly and reasonably believed the forged K50.00 note was in fact a genuine K50.00 note.

Cases Cited

Tiki Nori v Thackery [1967-68] PNGLR 37

State v John Rumet Kaputin [1979] PNGLR 544

Acting Public Prosecutor v Unama Aumane and Others [1980] PNGLR 30

SCR No 1 of 1980; Re S.22A(b) of Police Offences Act (Papua) [1981] PNGLR 544

SCR No 2 of 1981; Re S.19(1)(f) of the Criminal Code [1982] PNGLR 150

State v Magracia [1984] PNGLR 117

Gari Gawi v Ben Anton [1984] PNGLR 1

Anskar v Yansuan [1985] PNGLR 1

Loho v Hambindua [1985] PNGLR 286

State v Cathy Ramoi [1988-89] PNGLR 516

Rex Kupu v Demas Doria [1988-89] PNGLR 1

Legislative Provisions

Criminal Code (Ch. No. 262), Ss.158,4,6

Summary Offences Act Ch No 240, Ss.20, 47

Constitution S.7 (2), (4) (a)

Organic Law on Duties and Responsibilities of Leadership (Ch No 1), S.31

Counsel

P Kumo for the State

G Gendua for the Accused

19 June 1995

INJIA J: The accused pleaded not guilty to a charge that he “on the 13th day of October 1994, without lawful excuse, had in his possession a forgery of fifty kina, a current note” contrary to Section 158 of the Criminal Code (Ch. No. 262) (hereinafter referred to as the “Code”).

Section 158 of the Code provides:

“A person, who without lawful excuse (proof of which is on him), has in his possession, a forgery of a current note is guilty of a crime.” (underlining is mine)

It is not disputed that on 13 October 1994, the accused had in his possession a forged K50.00 note. The accused was apprehended at the PNGBC Bank at Kundiawa when he tried to deposit the forged K50.00 note in his personal passbook account. The forged K50.00 note is in evidence. The key State witness, one Francis Danga described the features of this forged note as having a lead pencil lining drawn horizontally and not the usual metallic fibre lining; two sides of K50.00 notes were glued together and therefore it is much thicker than the genuine K50.00 note; the colour peeled off whereas a genuine note would not; there was white colour crisps whereas a genuine K50.00 note would not have crisps and finally when it was electronically tested, it turned blue whereas a genuine note would not change its colour.

The accused is a young single man from Bongul village in the Gembogl District. He is educated up to Grade 10 at Mt. Whilem High School. The combined effect of his unsworn statement from the dock and his answers in the Record of Interview is that he received the note from his mother. His mother was given the note by one Timothy Mond who had received it as part of the proceeds of a bride price payment for his sister. The accused said he had no knowledge that it was a forged note and took it to the said bank to deposit it in his account when he was apprehended by the bank staff and handed over to police without any discussions. He did not call Timothy Mond or his mother to support his story.

At the close of the defence case, I invited both counsels to address me on the constitutionality of the proviso in S.158 shifting the burden of proof of the “lawful excuse” to the accused. I am greatly assisted by their submissions. I agree with both lawyers that the proviso is constitutional as coming within the proviso in Constitution, S.37(4)(a) which provides:

“A person charged with an offence 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.” (underlining is mine)

The onus is on the accused to prove, that he had a “lawful excuse” for being in possession of the forged current note. The standard of proof is on the civil standard, that is, on the balance of probabilities: SCR No 1 of 1980; Re S. 22A (b) of Police Offences Act (Papua) [1981] PNGLR 28; State v John Rumet Kaputin [1979] PNGLR 544 at p. 548. The initial burden of proof is on the prosecution. This burden is commonly known as the evidentiary burden of proof - of proving each element of the offence beyond reasonable doubt. The overall burden of proof still remains with the prosecution to the end. In the instant case, the prosecution has satisfied all the elements of the offence, namely that the accused had in his possession a forgery of a K50.00 note. It is now for the accused to satisfy me, on the balance of probabilities, that he had a “lawful excuse” for being in possession of the said forged note. The burden placed on the accused is only to prove particular facts which are own or would be with the exercise of reasonable care, peculiarly with his knowledge. In order to prove the “lawful excuse”, the accused need not give evidence or need not give sworn testimony or need not call any witnesses. Suffice if he can persuade me that he had a “lawful excuse”.

What then is or constitutes a “lawful excuse”? There is uncertainty of judicial opinion in this country on this issue as to whether it means only the exculpatory defences prescribed by the Criminal Code or any other applicable statutory provision, or whether it extends any other exculpatory provisions provided by the underlying law, that is, common law or customary law as adopted under Sch. 2.1 and 2.2 of the Constitution. For instance, in Rex Kupu v Demas Doria, [1988-89] PNGLR 1, Bredmeyer J had the occasion to consider what “lawful excuse” mean in the context of S.20 of the Summary Offences Act (Ch No 240) which provided that “ A person who without lawful excuse, is in or adjacent to any premises, is guilty of an offence.” He differed from views expressed in earlier National Court decisions in Tiki Nori v Thackery [1967-68] PNGLR 37, Gan Gawi v Ben Anton [1984] PNGLR 1, Anskar v Yansuan [1985] PNGLR 1 and Loho v Hambindua [1985] PNGLR 286 and gave a broad meaning. He held that for “the purpose of S. 20 of the Summary Offences Act, “unlawful excuse means an excuse allowed or permitted by the civil law or the criminal law or any combination of the two: lawful excuse under the civil law includes the express or implied licence or permission of the occupier or owner to be there; lawful excuse under the criminal law includes any excuse open under the Criminal Code (Ch No 262) such as bona fide claim of right or mistake of fact”. (see headnote at p. 1) In the State v John Rumet Kaputin [1979] PNGLR 544, Greville Smith J had the occasion to consider the meaning of “lawful excuse” under Code, S. 209 (now Code, S. 206 of the Revised Laws). Section 209 provided that “a person who without lawful excuse (proof of which is on him), disobeys a lawful order issued by the Court, or by any person authorised by any law to make the order, is guilty of a demeanour.” His Honour sought to define “lawful excuse” by saying:

“It is not, in my view, for the purpose of this case necessary, nor is it desirable to attempt an exhaustive definition of the term “lawful excuse” in S. 209, but in my view, it would include the various exculpations provided within Ch. V of the Criminal Code which deals generally with criminal responsibility and may though the Criminal Code is, as the name implies, a Code (Bank of England v Vagiliano Bros) (16) extend to excuse which are provided or arise under some other statute or provision of the law.” (at p. 550-551)

The only case I can find which deals with S. 158 is State v Magracia [1984] PNGLR 117. In that case, the accused was charged with having in possession a forgery of a current K20.00. After finding that the State had proved that the accused had the forged K20.00 in his possession at the material time, Kaputin J then went on to consider whether the accused had satisfied the Court, on the balance of probabilities that he had a “lawful excuse” for being in possession of the forged K20.00 note. His Honour examined several english authorities on the point and summarised the sum effect of the authorities as follows:

“In my opinion, where a man can only show that he did not know that the note was forgery, that in itself, is not a lawful excuse: he must go further to show that he acquired them lawfully; for unless he acquired them lawfully he will not have a lawful excuse.”

However, in the above case, no attempt was made to define what was meant by “lawful excuse” or “lawfully obtained”. If “lawful excuse” was accorded its ordinary meaning, then lack of knowledge of the note was a forgery might have raised a defence of mistake of fact under Code, S. 25 and as to how the accused obtained the forged note would have then become a consideration relevant to the issue of honest and reasonableness, but mistaken, belief that the forged K50.00 note was a genuine current note.

For the purpose of S. 158, my own view is that “lawful excuse” should be given its ordinary meaning. It’s ordinary meaning is an excuse provided by the criminal law. In this country, criminal law is written law : Constitution, S. 37 (2). The written law prescribes the offence, the exculpations and penalties. In the past, the Supreme Court has vehemently expressed the view that the National Court or other courts of the National Judicial System must determine the criminal offence and penalties within the range prescribed by a written law: Acting Public Prosecutor v Unama Aumane & Others [1980] PNGLR 510 at p.530 (per Kapi J); SCR No 2 of 1981 Re S. 19 (1) (f) of the Criminal Code [1982] PNGLR 150 at p. 157 (per Kearney Dep CJ). It would follow that the exculpatory defences must also be confined to those prescribed by a written law, in this case the Code or any other relevant statutory provision such as the Constitution, Organic Laws, Acts of Parliament, and so on. The underlying law cannot be a source of prescribing an offence or the exculpatory defences or the penalty for that offence. There will of course be occasions where judicial opinion in english cases and customary practices may be used to assist in the interpretation and application of provisions of the criminal law but they cannot be a source for defining an offence, the exculpatory defences and for prescribing a penalty. To do otherwise is to introduce uncertainty into the criminal law.

The question whether there is a “lawful excuse” is primarily a question of law though to some extent it involves a determination of question of facts as well. This distinction can clearly be seen in relation to other penal provisions where different terminologies are used to show the primarily factual issues involved. For instance, the words “without reasonable excuse” used in S.31 of the Organic Law on Duties and Responsibilities of Leadership (Ch No 1), State v Cathy Ramoi [1988-89] PNGLR 516 and S. 47 of the Summary Offences Act (Ch No 240). In those cases, any plausible factual reasons provided by the accused person might suffice whereas in the case of a “lawful excuse”, the exculpatory defence must be defined by some statutory provision.

Furthermore, S. 4 and S. 6 of the Code clearly prescribe the source of criminal law in relation to an indictable offence to be the Criminal Code or some other Act of the Parliament. They provide:

“S.4. Liability to trial.

No person is liable to be punished in Papua New Guinea for an indictable offence except under the express provisions of the Code or some other Act of the Parliament.”

“S.6. Saving of powers of Courts under other acts.

This Act does not limit or affect in any way any provision of any other Act conferring on a Court a power to pass sentence or impose a punishment or make an order in addition to or instead of a sentence or punishment prescribed by the Code, or otherwise to deal with an offender.”

The upshot of the foregoing discussions is that in my opinion, where the word “lawful excuse” is used in a penal provision, it refers to any exculpatory defences provided by the statutory provision which creates the offence or any other applicable statutory provision. As in S. 158, where an accused person provides an excuse or explanation purporting to be a “lawful excuse” to the charge, that excuse or explanation must be identified with an exculpatory defence provided by the Code or any other relevant statutory provision.

In the instant case, the fact that the accused obtained the forged K50.00 note from the proceeds of a bride price payment through his mother, albeit lawful, does not satisfy the burden placed on the accused. It is however a relevant consideration which pertains to the issue of whether he had an honest and reasonable, but mistaken, belief that the forged K50.00 note was a genuine current K50.00 note: S. 25 Code. On the evidence, am I satisfied on the balance of probabilities that he held a honest and reasonable belief? The forged note on first glance appears to me to be no different from a genuine K50.00 note. The police informant who gave evidence shares my view. Both counsels also agree with me. It is no doubt the making of an expert. It is dirty and appears to have been in use for some time. In practical life, almost all people who use current notes take the notes for granted. They do not stop to ask whether the note in their possession is a forged note. We all are influenced by its colour and make. It is only when one has prior knowledge or reason to suspect a forgery of a note that we stop to examine it closely. The evidence in this case is that this was the first time the accused received the note. He took the forged note for granted as a genuine note and went straight to his bank to deposit it in his account. He did not doubt its genuineness, otherwise he would have asked the bank tellers. At the bank, no one queried about how he came into possession of the note and was whisked away by bank security staff. He told his story to the police which is the same story he gave to this Court.

Mr Kumo for the State submits that the accused is an educated man and he must have used current notes in his lifetime so as to be able to distinguish this forged note from genuine current notes. However, in my view, that is only an assumption. As I intimated during submissions, the accused knowledge of and use of current notes, in particular current K50.00 notes, is not a matter which is peculiarly within his own knowledge. He operated a bank account at PNGBC.

Mr Francis Danga who gave evidence on behalf of the bank should have produced the banking records of the accused bank account which should, in my opinion, show transactions involving the kind of money the accused is used to. This is a vital piece of evidence which the State should have called as part of its overall burden of proving its case beyond reasonable doubt.

I am satisfied on the evidence, on the balance of probabilities, that the accused has discharged the burden placed on him by S. 158, that he had a reasonable and honest, albeit mistaken, belief that the forged K50.00 note was in fact a genuine K50.00 note, as provided by S. 25 of the Code. I am also satisfied that the State has failed to negative this defence. I return a verdict of not guilty and order that the accused refund his bail money.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor