N7945
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) N0. 201 0F 2018

THE STATE

V

ELIAS AROS KOHUO
(No 1)

Lihir:   Susame, AJ
2019:  17th June

CRIMINAL LAW – verdict- Offence- Forgery Of A Document –S462 (1) Criminal Code – guilty

Cases Cited:

Paulus Pawa v The State [1981] PNGLR 498
R v Magalu [1974] PNGLR 188

Counsel:

Mr. L. Ragan, for the State
Mr. A. Tunuma, for the Accused 

DECISION ON VERDICT
17th June, 2019

1.      SUSAME, AJ: Elias Aros Kohuo claimed he was one of the original shareholder and director of Lihir Maintenance Services Ltd when the company was first incorporated under the name Rambo Maintenance Service Ltd. 

2.  He claimed thinking that he was dead, the directors decided in a meeting held on 14 May 2010 for transfer of his shares to a Laurah Rapis. Laurah Rapis was one of the shareholders of the company. On 30 May 2016 Elias presented himself before Sylvester Kimson, Manager of Business Development Services and made representation to the effect that he was the original director. He asked to be reinstated as the sole director of the company and all the other directors to be removed. 

3.   Sylvester advised him changes cannot be made without a written authorization from a current director for lodgment to be made online. Elias instructed Sylvester to write the authorization letter on behalf Roland Molaka and he will have him sign.  Roland was the former shareholder and Secretary of the company and had since passed on in 2006.  Sylvester did as he was instructed. Elias left with the letter. He personally signed it and returned it to Sylvester the following day, 31 May 2016 and lodgment was made online.  

4.  Following the lodgment changes were made to the composition of directorship and shareholding. The company extract as of 6 July 2016 show Aros Kohou (accused) as the sole director and a shareholder, Roland Molaka (deceased) as the company secretary and a shareholder. Other shareholders were Giar Arau, Ezekiel Puot and Lavinia Roland 

5.  Based on the set of facts set out above State alleges Elias actions amounted to forgery, offence provided in s 462 of the Criminal Code. 

Evidence

6.  The only evidence before me is from the State which consisted of witnesses’ statements, record of interview and other documents tendered by consent. Defence decided not to adduce evidence.  Mr. Tunuma of the accused decided to take that approach and argue the defence case on point of law.  

7.   The basis of his argument s 462 cited on the indictment does not create the offence. Offence is created by subsection (1) of s 462. By that omission the indictment does not disclose the crime accused is charged with. Therefore, the charge should be dismissed and accused discharged. 

8.    I intimated to Mr. Tunuma what authority he based his argument on. He was not able to offer any assistance neither did Mr. Rangan.  

9.    I posed a question to both counsels whether omission to cite the precise section on an indictment makes it to nullify the charge? I thought otherwise insisted on both counsels to properly argue the point with directions issued for supplementary submissions to be filed which they did. Mr. Tunuma has since altered his position, asked court to disregard the argument on this particular issue. 
10.  At this point I want to touch briefly on accused person’s position not to testify or call witnesses. The Constitution places no obligation on an accused person to give evidence. He may or may chose not to give evidence. Where an accused person decides not to testify or call witnesses to support his case the court may draw inference which properly flow from the State’s evidence and reach a verdict. His silence and lack of evidence cannot be taken as admission of guilt and inference of guilt may be drawn. Nonetheless, failure to testify may tell against him in that it may strengthen the State’s case by leaving it unexplained and contradicted on vital facts. (Paulus Pawa v The State [1981] PNGLR 498.) 

Issues

•	Whether the omission to cite the precise section creating the offence was substantially fatal to nullify the indictment? 
•	Whether accused conduct amounted to forgery?

11.   Court has considered all the arguments. A bit of back ground facts on how the matter came to court. The case had been processed through the committal track in the District Court.  In February 2017, the committal court refused to commit the accused to the National Court due to insufficiency of evidence. Aggrieved by the ruling the arresting officer by correspondence sought Public Prosecutor’s intervention requesting for an ex officio indictment for prosecution of the accused. That request was granted when the Public Prosecutor studied the court’s ruling and the evidence in Police Hand Up brief file disclosed the current charge accused was indicted for.  The Public Prosecutor in the exercise of his powers under s 526 prepared an ex officio indictment dated 28 May 2018 charging the accused with the offence of forging a document purporting to be a Letter of Authority purportedly signed by Roland Molaka. 

12.  Let me first address the issue on defective indictment. What is of concern to me is the rational issue which was raised after trial during final address on verdict. I would have thought as a matter of good professional practice the issue should have been raised and settled at the commencement of trial prior to accused pleading to the indictment. The omission or error would have been corrected by necessary application under established criminal practice rules. (s 534, 535) The indictment was accepted without the omission corrected and trial progressed. 

13.   Indictments may be presented in the National Court in accordance with ss525 and 526. Indictment is prepared in the form prescribed in s 528 and consistent with the rules set out in s 529.  What is required sufficient to be set forth on an indictment is the offence with which the accused person is charged. It must state offence was committed in such a manner and with such particulars as to the alleged time and place the offence was committed and the person to be aggrieved (if any) and the property (if any) in question and state any circumstances of aggravation to be relied on. Indictment must sufficiently describe an offence in the words of the Code or other written law defining it.  The pleading rules do not make mention of the sections to be cited precisely. 

14.    An indictment is not formally defective if the section creating the offence is precisely cited. In this case the indictment presented had stated the particulars of the charge and sufficiently described the offence found in s 462(1).  In essence an accused person does not plead to the section that creates the offence rather to the alleged facts and charge described in the indictment.  

15.   Hence, the omission or oversight to type in or write in subsection (1) is a minor one and cannot make the indictment defective. The error cannot be prejudicial to the accused person and cause substantial miscarriage of justice.  Consequently, the answer to the question posed is:  No. 

16.    Now to the second issue: Whether accused conduct amounted to forgery?

 Offence

17.   Section 460 provides a wide definition of the word forgery. It is a crime of knowingly making a false document or writing; or altering a genuine document; or writing in a material part and making a material addition to the body of a genuine document or writing; or adding to a genuine document or writing a false date, attestation, seal or other material matter, to the prejudice of a person that a person may in the belief that the document is genuine be induced to do or refrain from doing an act. 

18.   In order to obtain a conviction State is required to prove beyond all reasonable doubt the following:

•	Accused knowingly did an act.
•	To forge a document 
•	The forged document was acted on 
•	The other person was prejudiced 

19.   At this juncture let me make one observation on a question Mr. Tunuma posed as one of the issues to be decided. That is, whether the accused person intended to defraud. He argued accused person had no intention of dealing with and to defraud the complainant company in any manner or form.  Intention to defraud is not an element of the offence required proving. The argument cannot stand in so far as the offence is concerned. (R v Magalu [1974] PNGLR188.)

Findings 
 
20.   Facts that are well founded by evidence adduced by the State. Elias claimed he was one of the original shareholder and director of Lihir Maintenance Services Ltd when the company was first incorporated under the name Rambo Maintenance Service Ltd. He claimed thinking that he was dead, the directors made the decision in a meeting held on 14 May 2010 for his shares to be transferred to a Laurah Rapis who was one of the shareholders of the company. Based on the above reasons on 30 May 2016 Elias presented himself before Sylvester Kimson, Manager of Business Development Services and asked to be reinstated as the sole director of the company and all the other directors to be removed.

21.   That may have been the case. However, the claim remains a mere assertion in the absence of any evidence.  At the time accused made representation to Sylvester Kimson Manager of Business Development Services he was never a shareholder or director of Lihir Maintenance Services Ltd. 

22.   Sylvester advised him changes could only be made with the written authority of a current director by a letter to be lodged online. Elias then told Sylvester to write an authorization letter under Roland Molaka’s name and he will have him sign the letter.   

23.    Roland Moloka was a former a shareholder and company Secretary. That is evidenced by the company extract as at 30 March 2015.  And he had passed on since 19 December 2006 as evidenced by the medical certificated of death. Elias was privy to those information and never disclosed them.  

24.    Based on that Elias instructions Sylvester prepared the letter and handed it to Elias.  Elias returned the following day, 31 May 2016 with the letter bearing his signature. Sylvester acted upon the letter believing it was genuine and made the lodgment online.    

25.  Following the lodgment changes were made to the composition of directorship and shareholding. The company extract as of 6 July 2016 named Aros Kohou (accused) as the sole director and a shareholder, Roland Molaka (deceased) as the company secretary and a shareholder. Other shareholders named were Giar Arau, Ezekiel Puot and Lavinia Roland.

26.    Elias knowingly forged the letter of authorization using a name of a person who he knew was dead and no longer a current shareholder and company secretary.  His actions were no doubt deceitful and prejudicial to the rights of the current directors and shareholders of Lihir Maintenance Services Ltd. 

27.    State has convincingly discharged the onus of proving all the essential elements of the offence. Accordingly, I find the accused Elias Aros Kohuo guilty of the charge. 
__________________________________________________________________
Public Prosecutor:	 Lawyer for the State				
Public Solicitor:	Lawyer for the Prisoner