N8676

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 340 of 2019

THE STATE

V

SOLIS IMA

Waigani: Berrigan J
2020: 20th October and 8th December

CRIMINAL LAW – PRACTICE AND PROCEDURE – S. 404(1)(a) of the Criminal Code – Obtaining by false pretence – Elements of offence - To “obtain” a chattel, money or valuable security an accused must obtain ownership in it and not merely possession – Accused did not obtain property in the cheque delivered to him, merely possession – Not guilty.

CRIMINAL LAW – PRACTICE AND PROCEDURE - S. 463(2) of the Criminal Code – Knowingly and fraudulently uttering false documents – Elements of offence – Duplicity – The rule against duplicity prohibits the prosecution alleging two or more offences in a single charge – Test to be applied  – Charge was not defective for pleading the uttering of two documents at the same time for the same purpose as one offence – Guilty.

The accused presented two documents to the Internal Revenue Commission (IRC), both of which he knew to be false, namely: an identification card purportedly issued by “JMart”, bearing his photograph and name and stating that he was employed as JMart’s “Admin and HR Clerk”; and a letter on JMart letterhead authorising him as the “duly appointed representative to collect and receipt any IRC cheque due for JMart Limited”.  The accused was never employed by JMart Limited and had no authority to collect any cheque on its behalf.  Upon presentation of the false documents to the IRC, the accused collected a cheque payable to JMart Limited in the sum of K583,353.70.  

The accused was charged with obtaining goods by false pretence on Count 1 of the indictment and uttering false documents on Count 2 of the indictment, contrary to s 404(1)(a) and s 463(2) of the Criminal Code, respectively.   

Upon arraignment the accused pleaded not guilty to obtaining goods by false pretence and guilty to uttering false documents.  A provisional plea of guilty was recorded on Count 2 and a trial proceeded on Count 1. 

Held:

Count 1, s 404(1)(a) - Obtaining by false pretence 

(1)	To establish the offence of obtaining by false pretence pursuant to s.404(1)(a) of the Criminal Code the State must prove that the accused:

a)	by a false pretence (or a wilfully false promise, or partly by a false pretence and partly by a wilfully false promise);
b)	obtained from another person;
c)	any chattel, money or valuable security;
d)	with intent to defraud.  

(2)	A false pretence is a representation made by words or otherwise of a matter of fact, past or present that is false in fact and that the person making it knows to be false or does not believe it to be true: s 403(1) of the Criminal Code. The false representation must be to material existing facts and not a promise to do something in the future or a representation by the representor as to the existence of an intention to do something in the future: Albert Alexander Age v The State [1979] PNGLR 589.

(3)	To “obtain” any chattel, money or valuable security for the purposes of s 404(1)(a) of the Criminal Code, an accused must obtain ownership and not merely possession of it: Amaiu v The State [1979] PNGLR 576; The State v Ruth Tomande (2019) N8030.   Note the distinction between stealing and obtaining by false pretence as explained in Amaiu (supra).

(4)	Furthermore, the property must be obtained as a consequence of the false pretence: R v Roebuck (1856) 25 LJMC 101.    

(5)	The State must also prove an intention to defraud as a separate element of the offence. Whilst an obtaining by  false pretence will usually provide evidence upon which an intention to defraud may be inferred, it will always be a question of fact to be determined in the circumstances of any particular case: Prosecutor’s Request No 4 of 1974 [1975] PNGLR 365.  

(6)	An intention to defraud means an intention on the part of an accused to deprive a person of property which is his or to which he might be entitled, or to put the property of that other person at risk, or to imperil some lawful right, interest, opportunity or advantage of another person by using deceit, or fraudulent or dishonest means knowing that he or she has no right to deprive that person of that property or to prejudice those rights or interests:  Roland Tom v The State (2019) SC1833; applying Scott v Metropolitan Police Commissioner [1975] AC 819 and Peters v The Queens (1998) 192 CLR 493.   

(7)	It is not necessary to prove an intention to defraud any particular person: s.588 of the Criminal Code.

(8)	In this case the cheque was “money” for the purposes of s 404(1)(a) of the Criminal Code.  It was also a valuable security, being a document evidencing the ownership of property, and of the right to recover or receive property upon presentation to a bank: s 1(1) of the Criminal Code.  

(9)	The evidence establishes that the accused did falsely pretend that he was authorised to collect a GST refund cheque from the IRC on behalf of JMart Limited.

(10)	The evidence also establishes that at the time the accused intended to defraud both JMart Limited and the State (the IRC) by depriving each of them of the cheque by using deceitful means knowing that he had no right to do so.  

(11)	The State has failed to establish, however, that the accused “obtained” any chattel, money or valuable security from any person for the purposes of s.404(1)(a) of the Criminal Code.  The accused did not obtain ownership of the cheque, he merely obtained possession of it. There was never any intention on the part of the IRC to part with property in the cheque to the accused.  On the face of it, the cheque was payable to JMart Limited, a separate legal entity:  Amaiu (supra) applied.  

(12)	Verdict of not guilty entered on Count 1. 

Count 2, s 463(2) - Uttering

(13)	To establish the offence of uttering contrary to s.463(2) of the Criminal Code the State must prove that the accused:

a.	knowingly; and
b.	fraudulently;  
c.	uttered a false document or writing (or a counterfeit seal).
 
(14)	To “utter” the false document or writing the accused must use or deal with it, or attempt to induce any person to use, deal with or act on it: s 1(1) of the Criminal Code.

(15)	The State must prove that the accused both knowingly and fraudulently uttered a false document or writing.

(16)	To act knowingly the accused must know of the false character of the document or writing: s 1(1) of the Criminal Code. 

(17)	To act fraudulently for the purposes of s 463 means with an intention that the false document or writing shall be used or acted on as genuine to the prejudice of some person, whether a particular person or not, or that some person, whether a particular person or not, will, in the belief that the thing in question is genuine, be induced to do or refrain from doing some act: 463(1) of the Criminal Code.

(18)	In this case the accused uttered the false identification card and the false authorisation letter, such that he used or dealt with them, when he presented them to the IRC: s 1(1) of the Criminal Code.

(19)	The accused uttered the documents knowingly, such that at the time the accused knew that the identification card and the authorisation letter were false in nature: s 1(1) of the Criminal Code.    

(20)	Furthermore, the accused intended that the false documents would be used or acted on as genuine, such that he intended that the documents would be accepted as representing authority for release of the cheque to him, to the prejudice of some person, namely JMart Limited who had not provided such authority and the State (the IRC), which would not have authorised the release of the cheque to the accused if it had known of the true position: s.463(1)(a).  

(21)	The authorisation letter and identification card falsely purported to provide authority for the delivery of property to JMart Limited via the accused, as its authorised employee, for the purposes of s463(2) read together with 462(5)(s) of the Criminal Code.  

(22)	Count 2 was not defective for pleading the uttering of the false identification card and the false authorisation letter as one offence.  

(23)	The rule against duplicity prohibits the prosecution alleging two or more offences in a single charge: Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 applying DPP v Merriman [1973] AC 584. See The State v Yawijah (2019) N7767.

(24)	Where a charge is duplicitous the prosecution is expected to apply to amend the charge, see R v Radley (1974) 58 Cr App R 394. In some instances it may be necessary to prefer an additional charge.  

(25)	The question as to whether an accused has committed one or more offences is best determined by applying common sense in deciding what is fair in the circumstances:  Merriman (supra).  

(26)	In this case the accused in the course of one criminal transaction uttered two documents that he knew to be false for the single purpose of representing to the IRC that he was authorised to collect a GST refund cheque payable to JMart Limited on its behalf.  Both documents were uttered together by the accused at the same time as part of a single criminal transaction or enterprise.  In the circumstances, it was proper to charge the accused in one count with uttering the two documents.  

(27)	The admissions of the accused on arraignment are established by the evidence.

(28)	Plea of guilty on Count 2 confirmed.

Cases Cited:
Papua New Guinea Cases

Prosecutor’s Request No 4 of 1974 [1975] PNGLR 365
Albert Alexander Age v The State [1979] PNGLR 589
Amaiu v The State [1979] PNGLR 576
Roland Tom v The State (2019) SC1833
The State v Yawijah (2019) N7767
The State v Ruth Tomande (2019) N8030 

Overseas Cases

R v Roebuck (1856) 25 LJMC 101
DPP v Merriman [1973] AC 584 
R v Radley (1974) 58 Cr App R 394
Scott v Metropolitan Police Commissioner [1975] AC 819
Walsh v Tattersall (1996) 188 CLR 77 
Peters v The Queens (1998) 192 CLR 493
R v Lenehan [2009] QCA 187

Legislation and other materials cited:

Sections 1(1), 403(1), 404(1)(a), 459, 462, 463(1), 463(2), 544, 588 of the Criminal Code Ch. 262 (the Criminal Code).

Counsel

Ms L. Jack, for the State
Mr E. Sasingian, for the Accused  

DECISION

8th December, 2020

1.	BERRIGAN J: The State presented an indictment charging the accused with one count of obtaining a cheque by false pretence with intent to defraud and one count of knowingly and fraudulently uttering false documents, contrary to ss 404(1)(a) and 463(2) of the Criminal Code Ch. 262 (the Criminal Code), respectively, such that he on the 26th day of March 2019:

Count 1:	“falsely pretended to one Cyril Kupesan at the Internal Revenue Commission (IRC) by presenting a fake identification card and a false authorization letter purporting to be an employee of J Mart Limited and that he was authorized to collect the Goods and Services Tax (GST) refund cheque for JMart Limited and obtained a cheque for the sum of Five Hundred and Eight-three Thousand, Three Hundred and Fifty-three Kina and Seventy Toea (K583, 353.70) with intend to defraud”.

Count 2:	“knowingly and fraudulently uttered false documents namely an identification card and an authorization letter purporting to be an employee and an authorized officer of J Mart Limited to collect a Goods and Services Tax (GST) refund cheque for the sum of Five Hundred and Eighty-three Thousand, Three Hundred and Fifty-three Kina and Seventy Toea (K583, 353.70)”.

2.	The State alleged on arraignment that at the relevant time the accused, Solis Ima, was unemployed and residing in Port Moresby with one Korul Bal.  On 26 March 2019 the accused went to the Internal Revenue Commission (IRC) and presented a fake identification card and a false authorization letter dated 25 March 2019 purportedly from JMart Limited to one Cyril Kupesan, a Goods and Services Tax (GST) refund officer with the IRC.  

3.	Upon presentation of those documents the accused collected a GST refund cheque payable to JMart Limited in the sum of K583,353.70 from the IRC.  It is alleged that he gave that cheque to one Korul Bal.

4.	The cheque was subsequently deposited on 21 May 2019 into an SME account in the name of JMart Limited, Number 7016961943, at the BSP (SME) Water Front Branch, which account was opened on 7 May 2019.  Nathan Kupa is the sole signatory to the account.

5.	Due diligence checks conducted by BSP with the IRC revealed that payment was not intended for the said account and the cheque was dishonoured.  The accused was subsequently arrested and charged.  

6.	The State alleged that at all material times the accused, Cyril Kupesan and Korul Bal were “all in contact with each other in trying to obtain this particular cheque from IRC”. 

7.	On arraignment the accused pleaded not guilty to Count 1 but guilty to Count 2.  Defence counsel indicated that his client wished to proceed with trial immediately before me, there being no issue as to prejudice arising from his plea for the reasons outlined below. 

8.	In the circumstances I entered a provisional plea of guilty to Count 2 and a trial proceeded on Count 1.

COUNT 1: OBTAINING BY FALSE PRETENCE

9.	Defence counsel informed the Court that the accused had no objection to the tendering of all statements and documents contained on the Court file. Furthermore, that in accordance with his guilty plea to Count 2, the accused took no issue with the facts alleged by the State on arraignment or contained on the materials to be tendered in evidence but that he intended to raise a legal argument with respect to Count 1 on those facts.  

10.	The State’s case comprised statements from twelve witnesses, including officers from the IRC and BSP, together with a further ten documentary exhibits, all of which were tendered by consent.  The evidence was largely formal in nature.

11.	In addition, in his record of interview, P24-B, English translation, the accused admitted that he was not employed by JMart Limited located at Erima, or by anyone.  Furthermore, that he received the IRC cheque payable to JMart Limited in the sum of K583,353.70, P3, from the IRC on 26 March 2019, by producing the “false ID card”, P4.  

12.	No evidence was called by the defence.

Findings of Fact

13.	On the evidence of Vanessa Tan, the General Manager of JMart Limited, I find that JMart Limited is a duly registered company with the Investment Promotion Authority, holding the Tax Identification Number (TIN) 500002971.  It submitted its GST claims to the IRC on 16 March 2018.  

14.	I further find on Ms Tan’s evidence that the accused was never employed by JMart Limited, nor ever authorised by JMart Limited to collect any GST refund cheque on behalf of the company.   

15.	In particular, the identification card, P4, bearing a photograph of the accused, was not a genuine identification card and falsely stated that the accused was an “Admin & HR Clerk” with JMart Limited.  

16.	Similarly, the letter on JMart Limited letterhead dated 25 March 2019 addressed to the Accounts Manager, IRC, authorising collection of “any IRC Cheque due for JMart Limited”, purportedly signed by Jason T Tan, as Managing Director, P5, was also false.  Jason Tan no longer held any role with the company, and no such authorisation was ever given to the accused by anyone at JMart Limited.   

17.	The letter states:

“RE:  Authorisation for Mr Solis J Imah Limited

With reference to the above, I write to officially confirm Mr Solis J Imah as our Admin and HR Clerk with our Erima Head Office.

He is currently representing our company to conduct any business dealings in regard to taxation matters through the Internal Revenue Commission.  He is also the only duly appointed representative to collect and receipt any IRC Cheque due for JMart Limited.”

18.	Furthermore, JMart Limited had no knowledge of another company by the same name which was incorporated on 28 March 2019, or the account operated at BSP SME Branch, Waterfront in the name of JMart Limited.

19.	Evidence from the IPA establishes that this other company, also called “JMart Limited”, was registered on 28 March 2019.  IRC records show that it holds a separate TIN, 501310360.  Nathan Kupa is its sole director.

20.	The evidence of Alesana Aihi, Team Leader of the SME Water Front Branch, BSP, establishes that an SME account was opened in the name of JMart Limited, holding TIN 501310360, on 7 May 2019, to which the sole signatory is Nathan Kupa.

21.	Evidence from the IRC establishes that IRC cheque number 005924 dated 21 March 2019 payable to JMart Limited in the sum of K583,353.70 was issued by the IRC to JMart Limited, TIN 500002971, in respect of its claims for the period September 2016 to July 2018.

22.	Upon presentation of the false authorisation letter and false identification card the accused collected the said GST refund cheque payable to JMart Limited in the sum of K583,353.70 from the IRC.  

23.	The accused was well aware at the time that he was neither employed by JMart Limited nor had any authority to collect any cheque on its behalf.

24.	IRC cheque number 005924 in the sum of K583,353.70 payable to JMart Limited was deposited to the SME account in the name of JMart Limited, holding TIN 501310360, by Nathan Kupa on 21 May 2019.

25.	The cheque was subsequently dishonoured by BSP upon advice from the IRC. 

Elements of s 404(1)(a) - Obtaining by False Pretence 

26.	The accused contends that the State has failed to establish that the accused obtained any “goods” for the purposes of s 404(1)(a) of the Criminal Code, such that the only item obtained was a cheque and a cheque is not a good or a chattel, nor had the cheque been converted into “money” at the material time, nor was it a “valuable security” for to be such it would have to confer property rights upon the person obtaining it and in this case the cheque was payable to JMart Limited, a separate legal person, and not the accused.  As such the State had failed to prove that the accused “obtained” the cheque, and in any event the cheque was dishonoured.

27.	The State submits that the accused obtained the cheque at the time it was collected by him at the IRC.  

28.	Section 404 provides:

(1) A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud–
(a) obtains from any other person any chattel, money or valuable security; or
(b) induces any other person to deliver to any person any chattel, money or valuable security,
is guilty of a crime.
Penalty: Imprisonment for a term not exceeding five years.

29.	To establish the offence of obtaining by false pretence pursuant to s404(1)(a) the State must prove that the accused:

a.	by a false pretence (or a wilfully false promise, or partly by a false pretence and partly by a wilfully false promise);
b.	obtained from another person;
c.	any chattel, money or valuable security;
d.	with intent to defraud.  

30.	Section 403 provides: 

(1) A representation made by words or otherwise of a matter of fact, past or present that–
(a) is false in fact; and
(b) the person making it knows to be false or does not believe to be true,
is a false pretence.

(2) A promise made by words or otherwise to do or omit to do any thing by a person who at the time of making the promise–
(a) does not intend to perform it; or
(b) does not believe he will be able to perform it,
is a wilfully false promise.

31.	Thus a false pretence is a representation made by words or otherwise of a matter of fact, past or present that is false in fact and that the person making it knows to be false or does not believe it to be true: s 403(1) Criminal Code. The false representation must be to material existing facts and not a promise to do something in the future or a representation by the representor as to the existence of an intention to do something in the future: Albert Alexander Age v The State [1979] PNGLR 589 at 592.

32.	Furthermore, the property must be obtained as a consequence of the false pretence: R v Roebuck (1856) 25 LJMC 101.    

33.	The State must also prove an intention to defraud as a separate element of the offence. Whilst an obtaining by  false pretence will usually provide evidence upon which an intention to defraud may be inferred, it will always be a question of fact to be determined in the circumstances of any particular case: Prosecutor’s Request No 4 of 1974 [1975] PNGLR 365.  

34.	An intention to defraud means an intention on the part of an accused to deprive a person of property which is his or to which he might be entitled, or to put the property of that other person at risk, or to imperil some lawful right, interest, opportunity or advantage of another person by using deceit, or fraudulent or dishonest means knowing that he or she has no right to deprive that person of that property or to prejudice those rights or interests:  Roland Tom v The State (2019) SC1833; applying Scott v Metropolitan Police Commissioner [1975] AC 819 and Peters v The Queens (1998) 192 CLR 493.

35.	Pursuant to s 588 (intention to defraud) of the Criminal Code it is not necessary to prove an intention to defraud any particular person:
On the trial of a person charged with an offence of which an intent–
(a) to injure, deceive or defraud; or
(b) to enable another person to deceive or defraud,

is an element, it is not necessary to prove an intent–

(c) to injure, deceive or defraud any particular person; or
(d) to enable any particular person to deceive or defraud any particular person.

36.	Returning to the present case, the accused did falsely pretend that he was authorised to collect a GST refund cheque from the IRC on behalf of JMart Limited.  

37.	The evidence also establishes that at the time he did so the accused intended to defraud both JMart Limited and the State (the IRC) by depriving each of them of the cheque by using deceitful means knowing that he had no right to do so.  

38.	The charge is, however, otherwise misconceived. 

39.	The State alleges that the accused “obtained” the cheque.  Whilst not separately and clearly particularised in the indictment, the allegation is that the cheque was obtained from the State (the IRC).  

40.	The State has failed, however, to establish beyond reasonable doubt, or at all, that the accused “obtained” any chattel, money or valuable security from any person for the purposes of s 404(1)(a) of the Criminal Code.

41.	I agree with defence counsel that the cheque was not a chattel, namely a “moveable possession”:  Oxford Dictionary, 7th Edition. I don’t agree, however, that it was neither money nor a valuable security.  It was in fact both.

42.	Pursuant to s 1(1) of the Criminal Code:
“money” includes bank notes, bank drafts, cheques, and any other orders, warrants, authorities, or requests for the payment of money;
“valuable security” includes any document that–
(a) is the property of any person; and
(b) is evidence of the ownership of any property or of the right to recover or receive any property;

43.	The cheque was clearly “money” as defined in the Code.  It was also a valuable security being a document evidencing the ownership of property, and of the right to recover or receive property upon presentation to a bank.  

44.	The critical issue here, however, as identified by defence counsel is that to “obtain” any chattel, money or valuable security for the purposes of s 404(1)(a) of the Criminal Code, an accused must obtain ownership and not merely possession of it: Amaiu v The State [1979] PNGLR 576; see also The State v Ruth Tomande (2019) N8030 at [20] to [22]. 

45.	The Supreme Court in Amaiu (supra) considered the distinction between stealing and obtaining by false pretence.  In that case the appellant, a Member of Parliament, was charged with stealing money in the sum of K10,120, the property of Wagop Kanawai.  The appellant, aware that certain payments by the Government for timber royalties had become available to certain clan groups and members, gained possession of a cheque payable to Wagop, by falsely representing two persons to the bank as Wagop and his son and thus securing authorization of payment of the funds into his own bank account, none of the money being subsequently recovered. On the appeal against conviction it was argued that there was no evidence that any property in the cheque had ever passed to Wagop and therefore it could not be stolen from him.

46.	In dismissing the appeal the Supreme Court held that the appellant was correctly charged with the offence of stealing for when he was handed the cheque there was no intention that any property in it should pass to him but he was merely given possession of it to physically convey it to the owner.

47.	Andrew J explained that:

“The distinction between larceny and the statutory offence of obtaining property by false pretences is that if a person being the owner of a chattel, or having authority from the owner to alienate it, is induced by the fraud of another person to part with it to him, and the latter at the time of taking it intends to misappropriate it as his own, then, if the former intended to part with property in the chattel to the taker as well as possession, the offence is not larceny but false pretences; but if he intended to part only with possession of the chattel to the taker, the offence is larceny. See R. v. Ward.”

48.	A similar situation was considered in R v Lenehan [2009] QCA 187 in which the Queensland Court of Appeal upheld an appeal against conviction of obtaining by false pretence under the Queensland Code.  In that case the appellant was the sole director, and sole shareholder, of a company which obtained cattle and other goods under a contract negotiated by the appellant. The goods were delivered to the company’s yards and received by the appellant.  The Court of Appeal rejected the prosecution submission that the company and the appellant were effectively one and the same, and that the appellant “physically” took possession of the cattle, finding that it was the company rather than the appellant personally who obtained possession and title.   

49.	In this case the accused did not obtain ownership of the cheque for the purposes of s 404(1)(a) of the Criminal Code, he merely obtained possession of it.   There was never any intention on the part of the IRC to part with property in the cheque to the accused.  On the face of it, the cheque was payable to JMart Limited, a separate legal entity.  

50.	It is also unclear on what basis the State alleges that the false pretence was made “to” Cyril Kupesan, when it is alleged that Cyril Kupesan was aware that the accused was not authorised to collect the cheque.  The false pretence was to the State (IRC).   

51.	I would also take this opportunity to remind the State that in drafting its charges it should follow the terms outlined in the Criminal Practice Rules, adjusted as appropriate having regard to the words of the offence provision contained in the Code, and the particular circumstances of any case.  

52.	According to the Rules a charge under s 404(1)(a) should be drafted in the following terms:
(1)By falsely pretending to (name person) that (state false presence)
(a) obtained from him [or (name person)] (give particulars) with intent to defraud; or
53.	The charge in the current indictment would have benefited from that approach, which normally ensures that each of the elements are properly pleaded and promotes brevity and clarity as to particulars, although it would not have, for the reasons outlined above, overcome the underlying error in the choice of charge.  

Alternative verdict

54.	The State did not seek to invoke s 544 of the Criminal Code, which provides that where a person is charged with obtaining goods by false pretence he may be convicted of stealing or misappropriating the same property if that offence is established by the evidence.   

55.	Section 544 of the Criminal Code states that:

On an indictment charging a person with–
(a) stealing, with or without a circumstance of aggravation; or
(b) obtaining goods by false pretences; or
(c) obtaining goods by a wilfully false promise; or
(d) obtaining goods partly by a false pretence and partly by a wilfully false promise; or
(e) cheating; or
(f) misappropriation of property; or
(g) procuring any other person to commit any such offence,
he may be convicted of any other of those offences committed with respect to the same property, if that other offence is established by the evidence.
56.	It appears to me that the evidence in this case may well establish that the accused stole monies, namely a cheque, from the IRC, or from JMart: see Amaiu, or alternatively, a charge of misappropriation.  As I have said previously, it is not necessary to show some consumption, expenditure or dissipation of property to establish that it has been applied: see for instance State v Hasu (2018) N8656; State v Douba (2018) N7627; State v Bae (2019) N8029;  State v Simon (2020) N8183;  applying R v Easton [1994] 1 Qd R 531.

57.	It also appears to me that the words “any other of those offences” in s 544 might allow an alternative verdict not only amongst the offences listed in subsections 544(a) to (g) but also within the subsections of any one of the offences identified, which are also separate and therefore arguably “other” of those offences listed.   To read s 544 otherwise would be to have the strange result that an accused could as an alternative to obtaining by false pretences under s 404(1)(a) be convicted of misappropriation under s 383A but not of inducing delivery by false pretences under s 404(1)(b).  

58.	As for s 404(1)(b) in this case, however, it is difficult to see how it might be said that the accused induced delivery of the cheque to the “bogus” company named JMart Limited when the State does not allege that the accused was aware of the bogus company and there is insufficient evidence to establish that matter.  

59.	As above, however, the issue of alternative verdicts was not raised by the State, and neither party addressed the applicability of s 544 in this case, or addressed the elements of any potential alternative offences, or any prejudice that might be suffered by the accused as a result of any such finding at this late stage of the proceedings, particularly having regard to the manner in which the accused has conducted his defence.  In the circumstances I do not intend to take the matter further.  

60.	The State’s case on Count 1 fails.

COUNT 2: UTTERING 

61.	Section 463 of the Criminal Code provides:
(1) In this section, “fraudulently” means with an intention–
(a) that the thing in question shall be used or acted on as genuine, whether in Papua New Guinea or elsewhere, to the prejudice of some person, whether a particular person or not; or
(b) that some person, whether a particular person or not, will, in the belief that the thing in question is genuine, be induced to do or refrain from doing some act, whether in Papua New Guinea or elsewhere.
(2) A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.
(3) It is immaterial whether the false document or writing, or counterfeit seal, was made in Papua New Guinea or elsewhere.
62.	Pursuant to s 1(1) of the Criminal Code “utter” means:

(a) use or deal with; or
(b) attempt to use or deal with; or
(c) attempt to induce any person to use, deal with, or act on,
the thing in question..

63.	Under Division 3, Forgery and Like Offences, of the Criminal Code, “document” and “writing” are defined in s 459 as including:
“document” includes–
(a) a register or register-book, or a part of a register or register-book; and
(b) any–

(i) book; and

(ii) paper, parchment or other material, used for writing or printing,
that is marked with any letters or marks denoting words, or with any other signs capable of conveying a definite meaning to persons conversant with them, but does not include trade marks on articles of commerce;
“writing” includes a mere signature and a mark of any kind.
64.	To establish a charge of uttering the State must prove that an accused both knowingly and fraudulently uttered a false document or writing. 

65.	It follows from s 1(1) of the Criminal Code that the State must establish that the accused knew that the document or writing was “false” when he uttered it: 

“knowingly”, when used in connection with an expression denoting uttering, implies a knowledge of the character of the thing uttered or used…

66.	Pursuant to s 463(1) the State must also prove that the accused acted “fraudulently”, such that he intended the false document or writing to be used or acted on as genuine to the prejudice or some person, whether a particular person or not.  

67.	It is clear in this case that the accused both knowingly and fraudulently uttered a false document or writing when he presented the false identification card and the false authorisation letter to the IRC.  

68.	At the time the accused knew that the identification card and the authorisation letter were false.  The accused was well aware that he was not employed by JMart Limited in any capacity, let alone authorised to collect any refund cheque on its behalf from the IRC.  

69.	Furthermore, the accused intended that the false documents would be used or acted on as genuine to the prejudice of some person, such that he intended that the documents be accepted as representing authority for release of the cheque to him, to the prejudice of some person, namely JMart Limited who had not provided such authority, and to the prejudice of the State (IRC), which would not have accepted the documents as providing authority for the release of the cheque to the accused if it had known otherwise: s 463(1)(a).   This is so, even if as the State alleges, the immediate IRC officer concerned, Cyril Kupesan, was aware himself that the documents were not genuine.   

70.	Whilst the accused denied any knowledge of the letter of authorisation, P5, in his record of interview, that issue is no longer in dispute, the accused admitting on arraignment that he did knowingly and fraudulently utter both the false identification card and false authorisation letter to collect the cheque.  That admission is also established by the evidence.   

71.	It was at the point of presentation that the offence was complete. The admissions of the accused on arraignment are established by the evidence.

72.	The uttering of the false identification card and the false authorisation letter were pleaded in the one Count.   No objection was taken to the pleading and in my view it is does not render Count 2 defective.  

73.	The rule against duplicity can be traced back to the 17th century at a time when there was “severe technicality and precision with respect to pleadings generally”: Walsh v Tattersall (1996) 188 CLR 77 at 105.  

74.	The rule against duplicity prohibits the prosecution alleging two or more offences in a single charge: Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 applying DPP v Merriman [1973] AC 584. The State v Yawijah (2019) N7767.

75.	Where a charge is duplicitous the prosecution is expected to apply to amend the charge, see R v Radley (1974) 58 Cr App R 394. In some instances it may be necessary to prefer an additional charge.  

76.	Whether or not a charge is duplicitous is always a question of degree: Walsh v Tattersall, supra.  The question as to whether an accused has committed one or more offences is best determined by applying common sense in deciding what is fair in the circumstances:  Merriman (supra).  Per Lord Morris at p 593:

"It is furthermore a general rule that not more than one offence is to be charged in a count in an indictment…The question arises - what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Lord Widgery C.J. in a case where it was being considered whether an information was bad for duplicity: See Jemmison v. Priddle [1972] 1 Q.B. 489 at p. 495. I agree respectfully with Lord Widgery C. J. that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances.”  

77.	And at p. 607 Lord Diplock said:
    
"The rule against duplicity, viz. that only one offence should be charged in any count of an indictment . . . has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the  B  time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment." 

78.	In this case it is clear that the accused in the course of one criminal transaction uttered two documents that he knew to be false for the single purpose of representing to the IRC that he was authorised to collect a GST refund cheque payable to JMart Limited on its behalf.  Both documents were uttered together by the accused at the same time as part of a single criminal transaction or enterprise.  In the circumstances it was proper to charge the accused in one count with uttering the two documents.  

79.	In this regard s 462 (forgery in general: punishment in special cases) of the Criminal Code, relevantly provides:
(1) A person who forges any document, writing or seal is guilty of an offence that, unless otherwise stated, is a crime.
Penalty: If no other punishment is provided–imprisonment for a term not exceeding three years…
(5) If the thing forged purports to be, or is intended by the offender to be understood to be or to be used as–
(s) an authority or request for the payment of money or for the delivery of property; …
the offender is liable to imprisonment for a term not exceeding seven years.
80.	According to its ordinary meaning, to “deliver” means to “bring and hand over (a letter, parcel, or goods) to the proper recipient or address”: Oxford Dictionary.    

81.	In this case the authorisation letter and identification card falsely purported to provide authority for the delivery of property to JMart Limited via the accused, its authorised employee, for the purposes of s 463(2) read together with s 462(5)(s).  Accordingly, the maximum penalty for the offence is seven years.  

CONCLUSION 

82.	In conclusion, the State has failed to establish beyond reasonable doubt that the accused by false pretence obtained a cheque for the sum of K583,353.70 with intent to defraud.  The accused is therefore acquitted of Count 1 of the indictment.  

83.	I confirm the accused’s guilty plea to Count 2 of the indictment.  The accused’s admissions are supported by the evidence.  

84.	Verdict:  Not guilty of obtaining by false pretence.  Guilty of uttering.  
_______________________________________________________________   
Public Prosecutor:   	Lawyer for the State		
Public Solicitor:	Lawyer for the Accused