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Yugari v State [2018] PGSC 33; SC1691 (16 July 2018)

SC1691

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCRA NO 1 OF 2018


ROLYN YUGARI
Appellant


V


THE STATE
Respondent


Waigani: Cannings J, Kariko J, Murray J
2018 : 26 June, 16 July


CRIMINAL LAW – appeal against conviction for forgery, Criminal Code, Section 462(1) – elements of offence – whether sufficient evidence on which court could be satisfied beyond reasonable doubt of existence of all elements of offence – whether documents were forged – whether appellant forged documents – circumstantial evidence.


The appellant appealed to the Supreme Court against her conviction by the National Court of two counts of forgery under Section 462(1) (forgery in general: punishment in special cases) of the Criminal Code, which states:


A person who forges any document, writing or seal is guilty of an offence that, unless otherwise stated, is a crime.


The Court found that she forged two documents, a statutory declaration and an instrument of transfer, relied on by the Registrar of Titles to transfer a State Lease over government land from a deceased person (the person whose signature the appellant was found to have forged) to the appellant and her husband. The appellant argued on appeal that the National Court erred in law by not setting out and addressing the elements of the offence, by entering a conviction despite insufficient evidence of all elements of either offence and by basing a conviction on circumstantial evidence without applying the necessary principles


Held:


(1) The elements of an offence under Section 462(1) of the Criminal Code are that:

(2) To determine whether a document has been forged, it must be proven, by virtue of Section 460(2), that the accused has (i) made a false document; (ii) knowing it to be false; (iii) with intent that it may be used or acted on as genuine either to the prejudice of any person or with intent that a person, in the belief that it is genuine, be induced to do or refrain from doing any act.

(3) It is highly desirable for a trial judge to set out the elements of the offence, consider the evidence before the court, state that the prosecution has the burden of proving the existence of each element beyond reasonable doubt, and state whether the court is satisfied that the prosecution has discharged that burden of proof. If such principles are not expressly set out, it must be demonstrated from a fair consideration of the reasons for judgment, by necessary implication, that in fact such principles have been applied by the trial judge.

(4) If the State’s case is dependent on circumstantial evidence it is highly desirable for the trial judge to expressly set out and apply the relevant principles in the reasons for verdict. If they are not set out and applied expressly, a mere statement of the relevant principles possibly in a summary form either with or without citing its source and applying them to the case before the Court might suffice; or a reference to the leading authorities on point and its application to the case at hand might suffice.

(5) The trial judge erred in law by: failing to set out and address the elements of the offence and not adequately demonstrating that he was satisfied that the State had proven beyond reasonable doubt the elements of each offence of which the appellant was convicted; finding the appellant guilty of both counts on the indictment in the absence of evidence that either document was a false document; and entering a conviction based on circumstantial evidence without applying the principles of circumstantial evidence.

(6) The errors were significant and rendered the verdict unsafe and unsatisfactory and meant that the decision of the National Court was based on a wrong decision of law. A miscarriage of justice occurred. The appeal was allowed.

(7) A new trial would have no practical utility. A verdict of not guilty on both counts on the indictment was entered.

Cases cited:


The following cases are cited in the judgment:


Billy Nara v The State (2007) SC1314
Daniel Maiyau v The State (2017) SC1644
Devlyn David v The State [2006] 1 PNGLR 187
Francis Potape v The State (2015) SC1613
John Beng v The State [1977] PNGLR 115
Paulus Pawa v The State [1981] PNGLR 498
The State v Garth McIlwain (2013) N5350


APPEAL


This was an appeal against conviction for forgery.


Counsel:


D Mamu, for the Appellant
D Mark, for the Respondent


16th July, 2018


  1. BY THE COURT: Rolyn Yugari was convicted after trial in the National Court of two counts of forgery under Section 462(1) of the Criminal Code and sentenced to six years imprisonment. She appeals against her conviction.
  2. She was convicted of forgery of two documents, a statutory declaration and an instrument of transfer, which were relied on by the Registrar of Titles to transfer a State Lease over government land from a deceased person (the person whose signature the appellant was found to have forged) to the appellant and her husband. Each document was regarded as “a document that by law is required for procuring the registration of any title to any land or estate in land”, for the purposes of Section 462(3)(f) of the Criminal Code.
  3. The appellant argues that the National Court erred in law by:

THE TRIAL


  1. The trial was conducted in 2017. The State alleged that in January 2004 the appellant was involved in forgery of a document purporting to be a statutory declaration by Moses Kombuki (count 1) and a Department of Lands transfer application form purporting to be signed as transferor by Moses Kombuki (count 2). The State alleged that if the Court were not satisfied that she forged those documents she at least aided and assisted her husband in doing so and was criminally liable under Section 7 of the Criminal Code. There were some uncontentious facts at the trial, including that:

The State’s case was based on the oral testimony of four witnesses.


  1. Justin Hewa Kombuki testified that he was a cousin of the late Moses Kombuki, who was a very sick man in January 2004 when the statutory declaration and transfer instrument were signed and given to the Registrar of Titles. He witnessed the appellant’s husband, James Yugari, bundle Moses Kombuki into a motor vehicle at Erima so that Moses Kombuki would make a public announcement that James Yugari and his wife would acquire Portion 2162 when he dies and would sign the statutory declaration and transfer instrument. The witness said that he had been living on Portion 2162 for a long period but after the appellant and her husband took over the property and asked him to leave, he became suspicious and checked the Department of Lands file and noticed that there was something wrong with the signature of Moses Kombuki on the statutory declaration and transfer instrument dated 20 January 2004. He was familiar with the signature of Moses Kombuki – he used to sign as “Moses K” – and formed the view that the signature on each document – written as “Moss” – was not that of Moses Kombuki, so he reported the matter to the police fraud squad.
  2. Senior Sergeant Felix Rayabrum testified that he was a police handwriting expert. In the course of the police investigation he was provided with two sets of documents containing the signature of Moses Kombuki. One set was marked by the police investigator as “genuine”. It included documents signed as “Moses K”. The other set was marked “forged”. It consisted of the statutory declaration and the transfer instrument the subject of the charges, bearing the signature “Moss”. Senior Sergeant Rayabrum said that in his opinion the signatures in the “genuine” set of documents did not share common authorship with those in the “forged” set of documents.
  3. Detective Senior Constable Derrick Francis was the police investigator. He testified that he conducted the police interview of the appellant, who offered no comment on the alleged offences. He provided various documents that he had received from Justin Hewa Kombuki to Senior Sergeant Rayabrum. There were some documents on which Moses Kombuki had signed with a full signature and not just “Moses K”, but he did not provide those documents to Senior Sergeant Rayabrum.
  4. James Irabu was summoned by the court to give evidence. He stated that he was a cousin of Moses Kombuki. He stated that Justin Hewa Kombuki is not their relative. He testified that he saw Moses Kombuki sign the statutory declaration the subject of count 1. Moses Kombuki was very sick at the time and signed the document in the back of a motor vehicle at Erima. That was the only document he saw Moses Kombuki sign. Although his (the witness’s) name and purported signature appear on the transfer instrument the subject of count 2, as a witness to the signatures of Moses Kombuki and the appellant and her husband, he denied knowledge of the instrument and denied that the signature was his.
  5. Documentary evidence adduced by the State included:

In regards to the subject mentioned above, we would like to enquire to your high office for any responses from Mr Malis Minape since we have given him enough time. We know that Mr Minape is a third person who has been the instigator for court cases for Mr Moses Kombuki had realised at the end of his ill health, he rejected Mr Minape totally and have given the land to James and Rolyn Yugari. [sic]


We can prove this with a copy of the statutory declaration and the transfer of title. To support this document, we have the brother of Mr Moses Kombuki, Mr James Irabu, who had signed as a witness of the transfer of title. The court summons that was made by us to Mr Moses Kombuki has been withdrawn since we have signed the statutory declaration and the transfer of title. We would appreciate if you could take your next stage of action under your own powers since Mr Minape is the third party and has nothing to do with this title and he has not satisfactorily responded to your letter. For your action please.


  1. The defence case was based on the oral testimony of two witnesses.
  2. The appellant denied signing either document for Moses Kombuki. She knew little about the signing of the statutory declaration. It might have been signed in the vehicle at Erima while she was outside the vehicle with her children. As for the transfer instrument, she was present when Moses Kombuki signed the document. She was not familiar with his signature but she saw him sign it. He was very sick at the time. She and her husband each signed it as transferees. James Irabu signed as a witness. James Irabu lied when he said in evidence that he did not sign the document.
  3. Humphrey Yugari, the appellant’s son, gave evidence about the family’s relationship with James Irabu. He said that his father, James Yugari, allowed James Irabu to settle on Portion 2162 in 2007 but did not allow him to build a permanent house.

THE VERDICT


  1. The trial judge made the following observations on the evidence:
  2. His Honour concluded that the statutory declaration and the transfer instrument were forged by either James or Rolyn Yugari. They were both responsible for the actions of each other. As the State invoked Section 7 of the Criminal Code, his Honour was satisfied beyond reasonable doubt of the guilt of the appellant and that she was involved in the whole episode of transferring the title from Moses Kombuki to herself and James Yugari. The appellant was convicted as charged.

ELEMENTS OF THE OFFENCE


  1. The indictment presented against the appellant was in the following terms:

COUNT 1: ROLYN YUGARI of Tani village, Tari-Pori, Hela Province, stands charged that she on unknown dates between the 19th day of January 2004 and the 24th day of January 2004 at Port Moresby in Papua New Guinea, forged a document purporting to be a statutory declaration signed by one late Moses Kombuki.


COUNT 2: ROLYN YUGARI of Tani village, Tari-Pori, Hela Province, stands charged that she on unknown dates between the 19th day of January 2004 and the 24th day of January 2004 at Port Moresby in Papua New Guinea, forged a document purporting to be a Department of Lands transfer application form.

  1. The appellant was charged and convicted under Section 462(1) (forgery in general: punishment in special cases), in circumstances of aggravation under Section 462(3).
  2. Section 462(1) provides:

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.


  1. Section 462(3)(f) provides:

If the thing forged purports to be, or is intended by the offender to be understood to be or to be used as ... a document that by law is required for procuring the registration of any title to any land or estate in land ... the offender is liable to imprisonment for a term not exceeding 14 years.


  1. The elements of an offence under Section 462(1) of the Criminal Code are that:
  2. It was non-contentious that the statutory declaration the subject of count 1 and the transfer instrument the subject of count 2 were ‘documents’.
  3. The critical issue at the trial was whether the appellant had forged the documents. Regard should have been had to the definition of forgery of documents in Section 460(2) (definition of forgery) of the Criminal Code, which states:

A person who makes a false document or writing, knowing it to be false, and with intent that it may in any way be used or acted on as genuine, whether in Papua New Guinea or elsewhere—


(a) to the prejudice of a person; or

(b) with intent that a person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Papua New Guinea or elsewhere,


is said to forge the document or writing.


  1. Thus to determine that a document has been forged, it must be proven that the accused has:
    1. made a false document;
    2. knowing it to be false; and
    3. with intent that it may be used or acted on as genuine either to the prejudice of any person or with intent that a person, in the belief that it is genuine, be induced to do or refrain from doing any act.
  2. We now address the grounds of appeal.

GROUND 1: FAILURE TO SET OUT ELEMENTS OF OFFENCE


  1. The appellant argues that the trial judge was obliged to set out and apply the elements of the offence and to show through the reasons for decision that he had applied the criminal standard of proof of beyond reasonable doubt to each element of the offence, and he did not do that, and this was an error of law.
  2. As explained by the Supreme Court in Devlyn David v The State (2006) SC881 it is highly desirable, in order to afford an accused person the full protection of the law, for a trial judge, in the reasons for decision on verdict, irrespective of whether the reasons are in a written or oral judgment, to:
  3. It is also desirable for the Judge to:
  4. The importance of a trial judge giving reasons for decision in that way was emphasised by the Supreme Court in Francis Potape v The State (2015) SC1613, as follows:

Although we know of no statutory imperative or case authority that require a trial judge to make express pronouncement of his finding or conclusion that the test whether the offence has been "proved beyond reasonable doubt" has been satisfied, the test described as "a time- honoured formula" for determining guilt (Dawson v R [1961] HCA 74; (1961) 106 CLR 1 at 18) is firmly established in the common law and adopted and applied by the Courts in this country as part of the underlying law in every criminal case tried by the Courts. The test is also founded on the constitutional protection on presumption of innocence in criminal cases. Its present wording is considered clear and simple enough and Courts have resisted attempts to substitute the test with other expressions that may change its meaning: John Beng v The State [1977] PNGLR 115. The test is formulated in those words for very good reasons, given the seriousness of a criminal offence, constitutional protection of presumption of innocence and the deprivation of personal liberty that flows from the conclusion. In every criminal case, it is highly desirable that the test should not only be expressly stated but a clear determination is made that the test has been actually satisfied by the prosecution. It is imperative that such determination should be pronounced in the judgment to avoid ambiguity and confusion, given the seriousness of the offence and the deprivation of liberty that flows from that determination.


  1. If such principles are not expressly set out, it must be demonstrated from a fair consideration of the reasons for judgment, by necessary implication, that in fact such principles were applied by the trial judge (Daniel Maiyau v The State (2017) SC1644).
  2. In the present case the trial judge did not set out the elements of the offence of forgery under Section 462(1) and did not consider the definition of ‘forging a document’. His Honour considered the evidence before the Court and made various findings of fact but did not relate those findings to the elements of the offence or the definition of forgery. His Honour did not expressly state that the prosecution had the burden of proving the existence of each element of the offence beyond reasonable doubt. Nor did his Honour expressly state that he was satisfied that the prosecution had discharged that burden of proof in relation to each element. His Honour concluded his reasons for verdict in the following terms:

In the end result, I find that the statutory declaration and the land transfer document were forged by either James Yugari or Rolyn Yugari. The State invoked Section 7 of the Criminal Code to show that each of them, that is James Yugari and Rolyn Yugari, both actively participated in the illegal transfer of the subject property. Both are equally responsible for the actions of each other as they both knew well what was going on and wanted the property for themselves. I am therefore satisfied beyond reasonable doubt of the guilt of Rolyn Yugari, that she was involved in this whole episode of transferring the land from Moses Kombuki to both herself and James Yugari and I accordingly convict her as charged.


  1. The question arises whether the trial judge, despite not expressly stating the principles and process of reasoning required to be applied in arriving at a verdict, sufficiently demonstrated through the reasons for verdict, by necessary implication, that in fact such principles were applied. We determine that question in the negative.
  2. We respectfully consider that his Honour failed to set out and address his mind to the elements of the offence and did not adequately demonstrate that he was satisfied that the State had proven beyond reasonable doubt the elements of each offence of which the appellant was convicted. We uphold the first ground of appeal.

GROUND 2: ENTERING CONVICTION WITHOUT EVIDENCE OF ELEMENTS


  1. The appellant argues that the trial judge erred in law by entering a conviction despite there being insufficient evidence of all elements of either offence of which she was convicted.
  2. Having considered the evidence before the National Court and the well-argued and extensive submissions of counsel for the appellant and the respondent in the Supreme Court, we respectfully consider that his Honour did err in being satisfied that the statutory declaration and the transfer instrument were forged.

We consider that there was insufficient evidence that either the statutory declaration (the subject of count 1) or the transfer instrument (the subject of count 2) were false documents.


  1. The only evidence directly supporting the proposition that the documents were false (in that the signature of Moses Kombuki on each document was false) was from Senior Sergeant Rayabrum who expressed the opinion that the signatures in the bundle of documents marked “genuine” that he had been given to examine did not share common authorship with those in the documents marked “forged”. We note that the trial judge did not refer to that evidence in his reasons for decision. That is of no consequence in itself as we consider that the evidence of Senior Sergeant Rayabrum was of little or no probative value. The opinion he expressed did not result from a scientific examination and comparison of handwriting on different documents. The circumstances in which he was asked to give his opinion – comparing two bundles of documents, one marked “genuine” and another marked “forged” – were unsatisfactory and amateurish. It was proper that the evidence was ignored.

That being the case, what evidence was there that the statutory declaration or the transfer instrument were false documents?


  1. As to the statutory declaration, there was direct evidence from James Irabu that Moses Kombuki signed the document, and no contrary evidence. As to the transfer instrument, there was direct evidence by the appellant that Moses Kombuki signed the document, and no contrary evidence.
  2. The evidence of Justin Hewa Kombuki that James Yugari bundled Moses Kombuki, who was ill and frail, into the vehicle as part of a plan to force Moses Kombuki to transfer the land to James Yugari and his wife (the appellant), supported the proposition, not that the documents contained forged signatures, but that James Yugari and the appellant were putting undue pressure on Moses Kombuki to sign the documents. That proposition was further supported by the way in which the documents have been signed, in what could conceivably be regarded as a frail hand, as “Moss”. The other aspect of the signature “Moss” appearing on the documents is that it does not appear to be a very good attempt at forgery. We consider that if a person were attempting to forge the signature of Moses Kombuki, a much better attempt would have been made.
  3. There was insufficient evidence before the court on which it could be satisfied beyond reasonable doubt that either the statutory declaration or the transfer instrument was a false document. This means that requirement (i) of the definition of forgery was not satisfied.
  4. If it had been proven that either document was false and been made so by the appellant (ie if it had been proven that she signed both documents in the name of Moses Kombuki), the court still needed to be satisfied beyond reasonable doubt that the person who made the documents knew that the documents were false (requirement (ii) of the definition of a forged document) and made the documents false with intent that they may be used or acted on as genuine (requirement (iii) of the definition of a forged document).
  5. However, without evidence that either document was a false document (a forgery), the court could not properly be satisfied that any person had forged either document. In these circumstances, as element (b) of the offence of forgery under Section 462(1) of the Criminal Code requires proof that the accused was the person who forged the document, no conviction could as a matter of law be entered.
  6. We are satisfied that the learned trial judge, with respect, erred in law by finding the appellant guilty of both counts on the indictment in the absence of evidence of the elements of the offence of forgery. Ground 2 of the appeal is upheld.

GROUND 3: CIRCUMSTANTIAL EVIDENCE


  1. The appellant argues that the trial judge erred in law by basing a conviction on circumstantial evidence without applying the necessary principles on entering convictions based on such evidence.
  2. There was no direct evidence that the appellant forged the statutory declaration or the transfer instrument. It is clear that the trial judge convicted the appellant on circumstantial evidence. His Honour was therefore obliged to apply the principles set out by the Supreme Court in the leading case Paulus Pawa v The State [1981] PNGLR 498 that:
  3. In Devlyn David v The State [2006] 1 PNGLR 187 the Supreme Court restated the Pawa principles by saying that the question to be asked is:
  4. It is highly desirable for a trial judge to expressly set out and apply the above principles in the reasons for verdict but if they are not set out and applied expressly, a mere statement of the relevant principles possibly in a summary form either with or without citing its source and applying them to the case before the Court might suffice; or a reference to the leading authorities on point and its application to the case at hand might suffice (Billy Nara v The State (2007) SC1314)
  5. The trial judge made no mention of the principles of circumstantial evidence in the reasons for decision. This was an error of law. Ground 3 of the appeal is upheld.

CONCLUSION


  1. To succeed on an appeal against conviction an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115).
  2. In this case, we consider that the errors of law entailed in the conviction are significant. The errors, for the purposes of Section 23 of the Supreme Court Act, render the verdict unsafe and unsatisfactory and show that the decision of the National Court was based on a wrong decision of law. Furthermore a miscarriage of justice occurred. Therefore the appeal will be allowed.
  3. As to the consequences of allowing the appeal, a new trial would have no practical utility. Therefore a verdict of not guilty will be entered under Section 23(3) of the Supreme Court Act.

ORDER


(1) The appeal is allowed.

(2) The conviction is quashed.

(3) A verdict of not guilty of counts 1 and 2 on the indictment is entered.

(4) The sentence is quashed and the warrant of commitment to custody issued by the National Court is revoked.

(5) Subject to any other warrant or order authorising detention, the appellant shall be released from custody forthwith.

Judgment accordingly.

__________________________________________________________________
Adam Ninkama Lawyers : Lawyers for the Appellant
Public Prosecutor : Lawyer for the Respondent

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