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Regina v Yam [1994] SBHC 70; HCSI-CRAC 33 of 1994 (21 September 1994)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No.33 of 1994

REGINA

-v-

AUSTIN YAM

High Court of Solomon Islands
(Palmer J.)
Criminal Appeal Case No. 33 of 1994

Hearing: 12th September 1994
Judgement: 21st September 1994

A. Radclyffe for Appellant
DPP for prosecution

PALMER J: On the 23rd of June, 1994, the Appellant was convicted of the following offences:

(i) Forgery contrary to section 330(3) (f) of the Penal Code;

(ii) Uttering contrary to section 336 (i) of the Penal Code; and

(iii) Official corruption contrary to section 85(b) of the penal Code.

He was acquitted on a charge of corrupt practice. He was sentenced for the three offences as follows:

(i) one year imprisonment but six months suspended for one year;

(ii) one year imprisonment concurrent, six months suspended for one year;

(iii) fined $250.00.

The Appellant now appeals against conviction on counts 1, 2 and 4, and sentence on counts 1 and 2.

COUNTS 1 and 2:

Grounds (i) and (ii) read as follows:

“(i) The Court erred in law in admitting Peter Tahunimae’s evidence on the grounds that he, being an accomplice, there was a powerful and obvious inducement to ingratiate himself with the prosecution and the Court.

(ii) Peter Tahumimae being a self-confessed forger should only have been called as a prosecution witness if the prosecution had undertaken not to proceed against him or if he had already been convicted and sentenced by a court. Neither of those courses of action was taken.”

Grounds (i) and (ii) are linked because if it is accepted that the prosecution witness, Peter Tahunimae, is an accomplice and that there was a powerful and obvious inducement to ingratiate himself with the prosecution and the Court, and that it is accepted that he is a self-confessed forger, then it would follow that unless prosecution has undertaken not to proceed against him or, if he had already been convicted and sentenced by a court, he should not have been called by the prosecution as a witness.

The starting point therefore is, is Peter Tahunimae an accomplice? And in order to answer that, the question what is an accomplice would have to be answered first.

The learned author in Halsburys Laws of England, 4th Edition at paragraph 457, stated: “...persons are accomplices if they are participants in the offence charged, whether as principals, procurers, aiders or abettors.”

The classic definition is contained in the case of Davies v. Director of Public Prosecutions (1954) 1 All ER 507 at 513, HL, per Lord Simmons LC:

“There is in the authorities no formal definition of the term ‘accomplice’, and your lordships are forced to deduce a meaning for the word from the cases in which X, Y, and Z have been held to be, or held liable to be treated as accomplices. On the cases it would appear that the following persons, have been treated as falling within the category: - (i) On any view, persons who are particeps criminis in respect of the actual crime charged whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting in the case of misdemeanours. This is surely the natural and primary meaning of the term ‘accomplice’”.

This definition was referred to in an article by J.L.I.J. Edwards, “Accomplices in crime” page 324, at pages 332 and 333. The learned author also explained why the evidence of an accomplice should be treated differently. At the bottom of page 332 and top of page 333, he states:

“Once it is established that the person who turns Queen’s evidence was himself involved with the prisoner in committing the actual crime charged his motives are naturally suspect, and this lead to his testimony being treated with suspicion and caution. Knowing all the circumstances of the crime, the accomplice is in a position whereby he can, with little difficulty, make convincing false charges against the prisoner. It is difficult enough to determine whether a witness is telling the truth or lying, but the need for caution is greater than usual in the case of a witness who was ‘in on the crime’ and then decides to turn against his former confederate.”

There are also several cases in Australia which considered the definition of the term ‘accomplice’. In R v. Webbe & Brown [1926] SAStRp 16; (1926) SASR 108 at 111, 112, the Court said:

“As to what an accomplice is, there is a singular dearth of legal authority. Foster describe him as any particeps criminis (Crown Law, p341, cited by Poole J in R v. Young [1923] SAStRp 1; (1923) SASR 35 at 69). The definition given in the Century Dictionary is “any participator in an offence whether as principal or as accessory”, and in the Encyclopaedia Britannica, “one who is associated with another or others in the commission of a crime, whether as principal or accessory”. Either of these definitions is, we think, sufficient.’

In R v. Cramp (1880) 14 Cox CC 390, the following was said:

“A person is an accomplice in the crime charged if he took part in its commission, and was privy to the criminal intent of the thing done.”

I do not think the above definitions quoted are in much dispute. What needs to be determined as a preliminary point is whether, Peter Tahunimae is an accomplice in the true sense of the word, bearing in mind that he had never been charged.

The evidence as adduced before the Magistrates’ Court is very clear. At page 6 of the record of proceedings Peter Tahunimae expressly stated that he wrote the forged letter and had it typed. That is clear evidence of being a’ particeps criminis’ in the offence alleged against the Appellant.

I am satisfied on the evidence before the Magistrates’ Court that Peter Tahunimae was an accomplice in the true sense of the word.

There is one clear distinction that needs to be noted. This witness is not a co-defendant in the proceedings before the court, and neither had he been charged separately.

The question that arises then is whether, this is fatal to the rule of practice described in the two texts referred to by learned Counsel for the Appellant.

In the first text referred to, Blackstones Criminal Practice, 1993 Edition, at page 1790:

“An accomplice against whom proceedings are pending but who is not an accused in the proceedings in which the prosecution seek to call him, should only be called by the prosecution if they have undertaken to discontinue the proceedings against him. This appears to be a rule of practice rather than of law.”

The second text referred to was Phipson on Evidence, 14^th Edition, at paragraph 9-22:

“It seems that any person jointly charged with the accused is incompetent to give evidence against him in committal proceedings, but the fact that he has been so called will make the committal bad. To render co-defendants competent to be called by the prosecution, such co-defendants must have been acquitted, or must have obtained a nolle proseque, or pleaded guilty, or must be tried separately. There is however a rule of practice, breach of which will lead to a conviction being quashed on appeal, that an accomplice who has been charged either jointly in the indictment with the defendant, or in the same indictment although not under a joint charge, or had been charged and not yet indicated (and semble if separately indicted) shall not be called by the prosecution unless he has pleaded guilty or no evidence is offered against him or a nolle prosequi has been entered in his case.”

Both quotations referred to the case of a co-defendant, or an accomplice who had been duly arraigned. The rationale behind that rule of practice is that there is an obvious and powerful inducement for such accomplice to ingratiate himself with the prosecution and the court, and that the existence of such inducement made it desirable in the interest of justice to exclude such persons from being called by the prosecution.

Peter Tahunimae’s case is as already pointed out slightly different. He had not been charged with any offence.

Under cross-examination, he made the following statements as recorded in page 7 of the record of proceedings:

“Nothing was told to me about the court case. When I came back in Mid January Police was looking for me. They took the statement from me. Officer from CID named Gabriel. I was taken to Rove Headquarters. He asked me questions. I answered all questions. He wrote the statement I signed. I was given no warning. I told him about the letter. Everything I told in court.

I was told that I will stand as a crown witness of this case. I was not told that I will be charged. They never told me that they look into my case after case. I was not told that I will be charged. They never told me that they look into my case after Yams case. When I prepared it I knew it was wrong because I was forced, I had to do it. I knew that I was doing something wrong.

Question – Are you surprised that you are not taken to court?

Answer – I am afraid that I will be charged for what I have done. I was not told by Police that if I co-operate I will not be charged.”

What is clear from the evidence of Peter Tahunimae is that there was no undertaking whatsoever that he will not be charged after the Appellant’s case had been dealt with. As a consequence, he was naturally apprehensive.

It is my respectful view that an accomplice in such a position as Peter Tahunimae should not have been called as a witness, unless some form of undertaking from criminal prosecution is provided by the police. Peter Tahunimae’s position is no different from an accomplice who had been charged with the same offence and where no immunity had been given, or had not been convicted and sentenced by a court. The test that should be applied is whether there is in existence an obvious and powerful inducement for such a person to ingratiate himself with the prosecution, and the court. In other words, is there a real possibility that such an inducement exists?

The fact that Peter Tahunimae had not been charged in my respectful view is immaterial. The evidence adduced showed very clearly that Peter Tahunimae was the principal offender in the forgery charge.

The evidence showed very clearly that Peter Tahunimae was quite apprehensive himself about what will happen to him next. And that would be a justifiable concern bearing in mind that nothing had been said to him as to any criminal proceedings that may be instituted against him.

The learned Director of Public Prosecution did point out that it would not be proper for him to turn around now and then prosecute Peter Tahunimae. Unfortunately this opinion was not it seems expressly put to Peter Tahunimae prior to the trial, as his evidence under cross-examination clearly showed. Accordingly, it is of little weight as to the question of the existence of an inducement to ingratiate himself.

The rule of practice in my view should be extended to include accomplices who have not been charged, and that they should be called only after a clear undertaking had been provided to that witness that he would not be indicted for the offence in which he had been asked to give evidence in. This course of action should remove the threat of the existence of an obvious and powerful inducement for such an accomplice to ingratiate himself with the prosecution and the court. That however, does not remove the requirement that such accomplice’s evidence should be treated with caution, and that the courts bear in mind the dangers of convicting on uncorroborated evidence.

On the evidence as adduced, I am satisfied there exists an obvious and powerful inducement on Peter Tahunimae’s part to ingratiate himself with the prosecution and the court and accordingly, it is important in the interest of justice that his evidence should not have been admitted. I am satisfied that the rule of practice referred to by the learned author in ‘Phipson on Evidence’ (ibid) should be applied in the circumstances of this case, which would accordingly have the effect of quashing the convictions on appeal, and I do so order.

In the event that I should be over-ruled on grounds 1 and 2, I will proceed to consider the remaining grounds.

GROUND 3(A)

The main contention raised under this part is that the Court had no grounds or adequate grounds for believing the evidence of Peter Tahunimae and that it failed to take account or proper account of certain serious inconsistencies in his evidence which would render the convictions unsafe and against the weight of the evidence before the Court.

(i) The first inconsistency raised was that Peter Tahunimae at first said that there was only one forged letter (exhibit 6) but when confronted with Exhibit D2 he changed his story but did not give a believable or satisfactory explanation for Exhibit D2.

In the evidence in chief of Peter Tahunimae, he states that he took the letter that he had forged together with the survey form ( exhibit 8), letter of recommendation from the Chief Physical Planner (exhibit 9) and the site plan (exhibit 10), and gave these to the Appellant. Peter Tahunimae identified the copy of the letter which he said he had given to the Appellant as exhibit 6. The original had never been produced. Under cross-examination it was put to that witness that he had in fact given letter marked exhibit D2 to the Appellant. Peter Tahunimae initially stated that he had signed both documents but then, when it was put to him that he was lying, he said that he had signed only one document. He further added that the one he gave to the Appellant was the one with the short signature. He further added that he had photocopied one letter without any signatures on it. When asked where that letter was, he said, he did not know. No explanation was provided too as to what he did with that letter.

When he was shown a photocopy of exhibit 6, and asked if he had seen the original, his reply was, no. And later on, he said that he wrote that letter. It is not clear whether he was referring to the contents of exhibit 6 which were similar to exhibit D2, or to the letter as produced, in view of his statement that he had not seen the original of exhibit 6. It is not clear too as to whether he meant that the original was in his possession at one stage, but that for purposes of production to the court that it was no longer in his possession, or, whether he could not say that he had signed the original of exhibit 6, with exhibit D2 and gave them both to the Appellant.

There is therefore a clear inconsistency in the crucial evidence of that witness as to which document he had given to the Appellant. There is no evidence to say that he had actually given two letters with the same contents to the Appellant.

The inconsistency is compounded by the evidence of Mosese Fuata (PW3), the then Acting Surveyor General and David Riki Houtara (PW5) who was then the Survey Land Officer (urban). Both witnesses identified exhibit 6 as the letter brought to their attention from which the allegation of forgery arose.

However, there were certain important matters which were never put to these two witnesses. First, it was never put to Mosese Fuata if the document he had seen was in fact exhibit D2. He therefore had no opportunity to confirm or not, what the Appellant’s version was, as to the document he brought to this witness.

Secondly, it was never to put to the same witness whether the letter brought by the Appellant was the original, or merely a photocopy, like exhibit 6. And following on from this, if the original was brought, what did he do with it, or what did he do with that document. Did he place it in his file and then deliver it to the police when investigations were being carried out, or did he return the original copy to the Appellant and only retained a copy for his file, which copy is exactly the same, if not, exhibit 6 itself.

Also in respect of David Riki Houtara, it was never put to him if the letter he saw was D2, or the original of exhibit 6, or a photocopy similar to exhibit 6, and whether he knew what happened to that document.

If the original of exhibit 6 had been returned to the Appellant, and that it no longer can be found, then it would go to indicate to some extent that perhaps it had been destroyed by the Appellant to try and cover his tracks. However, there is no evidence to that effect.

The allegation which prosecution seeks to prove is that the forged letter given by Peter Tahunimae to the Appellant was the original of exhibit 6. The Appellant’s defence on the other hand is that he was only given exhibit D2. Both documents are exactly the same apart from the signatures only. D2 contains a shortened signature, more of an initial, whilst exhibit 6 contains a longer version.

The significance of the existence of D2 it seems from the point of view of the Appellant is that it should throw into doubt the evidence of Peter Tahunimae about how exhibit 6 came into existence. That the existence of document exhibit D2 and the absence of a believable or satisfactory explanation as to its existence leaves a reasonable doubt as to whether Peter Tahunimae was actually telling the truth in court or not.

The suggestion put forward by the Appellant is that the inconsistency points more to a scheme to get him into trouble than anything credible that the court could rely on.

The learned Director of Public Prosecutions pointed out that the prosecution case was based on document marked exhibit 6. However, when an issue is raised which would seek to contradict the use of exhibit 6 through the production in court of a similar original document, then it is important in my view that prosecution should allow its witnesses to be able to make comment on that document. By not putting document marked exhibit D2 to PW3 and PW5, it leaves the gap wide open for this Court or the lower court to come to an equally opposite conclusion on the basis of credibility, or to entertain a reasonable doubt as to the evidence of PW2, PW3 and PW5, as to the question of whether it was exhibit D2 or exhibit 6, that they had seen with the Appellant.

I am satisfied that an inconsistency does exist in respect of the two documents; exhibit D2 and exhibit 6.

In his judgment the learned magistrate reconciled the above inconsistency by coming to the conclusion it appears, that an unsigned copy had been given to the Appellant when Peter Tahunimae went to see him on the 21st of December 1993 at about 2.00 p.m. Unfortunately, this conclusion would not it seems have taken proper cognisance of the statements of Peter Tahunimae made under cross-examination. At the bottom of page 8 of the record of proceedings, after being shown exhibit D2, he says:

“I have seen D2 about this before. It is the letter written by me. It is the letter is (sic) signed. I signed only one letter. Which one did you sign. D2/ex.6? I signed both of them.” It was then put to the witness that he was lying. At top of page 9 he says:

“I signed only one. How do you explain 2 different signatures. .... How do you explain D2? When I handed the letter to Yam I gave I placed short signature. I photocopied a letter without signature. I made I (sic) photocopy before I signed on the table.”

The responses of Peter Tahunimae as indicated showed a clear inconsistency which I am satisfied was not properly taken into account by the learned Magistrate. Had he so taken them into account I am not satisfied he would have reached the conclusion he did.

(ii) Peter Tahunimae said that the Appellant only asked for help in preparing a letter. The other evidence he gave concerning the contents of the letter (exhibit 6) was given in response to leading questions from the prosecutor. In cross-examination Tahunimae expressly stated that nothing else was said. The learned Magistrate failed to take adequate note of that point.

As to the point raised about asking leading questions, there is no evidence to show that this was done in Court.

There is no record of any objections being raised by Counsel for the Appellant in the Court below. Maybe leading questions were asked. But if it was considered an important point which defence would take issue with, then it is Counsel’s duty to raise an objection when such questions are posed. It does not assist the defence case to raise that now. That particular issue is dismissed.

It must be noted however, that under cross-examination, Peter Tahunimae did expressly state that nothing further was said. The suggestion sought to be portrayed here is that no procuration or counselling, to forge a letter was actually committed, and that rather, the actions of Peter Tahunimae were his own interpretations of the Appellant’s request for help, and that therefore the Appellant could not have been a party to the forgery of that letter. It was sought to be shown too that a guilty man would not go and openly thank David Riki Houtara, the Secretary to the Land Tender board, knowing that he had participated in a forgery of that very person’s signature.

I accept that the question as to which part of that witnesses’s statement to believe, is a matter for the learned Magistrate to assess, bearing in mind that he was in a better position to make assessment as to credibility. So although, I can accept that there may have been an inconsistency of evidence, it was well within the ambit of the learned magistrate to rule upon.

(iii) Any reasonable tribunal would not believe Peter Tahunimae’s evidence that the Appellant forced him to write the letter (Exhibit 6).

The question that should be addressed on this point is what sort of force or pressure was applied?

There appears to be no evidence to indicate what sort of force or pressure was applied other than that the Appellant said something about helping Peter Tahunimae with a letter. Rather, the evidence tends to show that Peter Tahunimae was a willing participant in the scheme, if true, to forge the letter.

I am satisfied that there was no evidence or little evidence to support the assertion of Peter Tahunimae that he had been forced or pressurised by the Appellant.

(iv) The basis of the prosecution case and the evidence in chief of Peter Tahunimae was that the Appellant procured the forgery of Exhibit 6. There was no evidence that the Appellant ever had anything to do with Exhibit 6 or that it was ever in his possession.

I have already covered the issue of whether there was evidence as to the existence of exhibit 6 and whether the Appellant had anything to do with it. As already pointed out earlier on that, apart from the inconsistent statements of the witness Peter Tahunimae, there is evidence from PW3 that the letter produced before him by the Appellant on the afternoon of the 21st December 1993 was exhibit 6. In addition to this was the evidence of PW5, who stated that he was also shown the letter which the Appellant had brought to the Acting Surveyor General to identify his signature on the letter, to which he confirmed that he did not sign that letter. As pointed out earlier on, these two witnesses were never cross-examined about exhibit D2. Accordingly, to say that there was no evidence that the Appellant had anything to do with exhibit 6 or that it was ever in his possession is not correct.

(v) The learned Magistrate failed to address the issue of why the Appellant and Peter Tahunimae would risk forging a letter for only $55.00 and why the Appellant would keep Exhibit D2. If he was guilty of counselling and procuring the forgery surely we would have destroyed the incriminating evidence once the forgery had been discovered.

I do not think that the failure of the learned Magistrate, if at all, to address the issue of why the Appellant and Peter Tahunimae would risk forging a letter for only $55.00 of much significance for the simple reason that it is perfectly possible for the learned Magistrate in applying his mind to that question to come to a contrary conclusion. If the learned Magistrate was of the view that the Appellant and Peter Tahunimae were in consort and that they had conspired together to forge the letter, then the sum of $55.00 would hardly have made any difference.

As to the question why the Appellant would keep Exhibit D2, if the learned Magistrate was of the view that the forged letter was indeed exhibit 6 or the original of exhibit 6, then it was quite possible for him to conclude that Exhibit D2 may have been kept as a red herring, or to distract attention.

It is my view that the failure to address both issues is not crucial to the appeal.

(vi) The prosecution failed to produce evidence that Exhibit D2 was a forgery and therefore the Appellant could not be guilty of uttering it. He did not utter Exhibit 6.

The approach of prosecution it seems was to virtually ignore the existence of Exhibit D2 or to consider its existence as immaterial to the prosecution case. It would be correct on one hand to take the view that prosecution had indeed failed to produce evidence that Exhibit D2 was a forgery and that the Appellant could not have been guilty of uttering it. On the other hand, it does not automatically follow that the Court should then accept that the Appellant did not utter Exhibit 6. As pointed out earlier on, the prosecution case stands or falls on the existence and alleged uttering of Exhibit 6. The significance of the existence of Exhibit D2 must be weighed carefully with the evidence of PW3 and PW4, who stated that Exhibit 6 was the document that they had seen on the afternoon of the 21st December 1993, and also the fact that they were not cross-examined about the existence of D2 under oath. This is a question of weight for the learned Magistrate to assess on the evidence before it and the learned Magistrate’s assessment of the demeanour of the witnesses who gave evidence in court. The significance of the issue raised under paragraph (vi) with respect again is minimal.

(vii) The learned Magistrate convicted the Appellant on the uncorroborated evidence of an accomplice Peter Tahunimae. (see page 3 of the judgment).

The first piece of evidence relied on by Mr Radclyffe is the paragraph marked (a) in page 3 of the judgment of the Magistrates’ Court.

“Evidence of PW2 which states that the accused wanted Exhibit (8) (the blue colour Survey initiation Form) & (10) (the site plan) attached to the said forged letter.”

Mr Radclyffe submits that this piece of evidence was tendered by Peter Tahunimae himself and therefore it could not be corroboration of what he said.

I accept that this piece of evidence was given by Peter Tahunimae himself and therefore could not be corroboration of what he himself had stated.

The second evidence referred to is marked paragraph (6) on the same page which reads:

“When PW (2) came to the Office of the accused around 2.00 p.m on 21/12/93 the accused signing the said Exhibit ‘8’.”

Mr Radclyffe submits that again this piece of evidence came from Peter Tahunimae himself and was not corroborated. To a certain extent that may be so, however, the existence of the signature of the Appellant on the blue survey form, which has not been challenged, does indicate that that document was signed sometime by the Appellant. The Appellant did not give evidence and therefore the learned Magistrate was entitled to accept the evidence given by Peter Tahunimae that it was executed on the afternoon of the 21st December 1993. I do accept however, that that does not mean conclusively that the learned Magistrate should then accept everything that Peter Tahunimae said as true and to be relied on. I also accept that that does not mean too that the Appellant was a party to the forgery charge.

The third evidence relied on is marked paragraph (c), at the same page. It reads:

“Accused taking the said Exhibit 6 along with other documents to Survey General (Acting) around 3.00 p.m. the same day 21/12/93 as for the evidence of P/W(3).”

The submission of Mr Radclyffe on this point is that the mere fact that certain documents were taken by the Appellant to the Acting Surveyor General at 3.00 p.m of the 21st December, 1993, is not conclusive of a guilty man. It could equally be seen in the light of the actions of an innocent man who, after receiving the letter of allocation and the documents, and after signing the blue survey form, then took them to the Acting Surveyor General to process. That, he says, is no corroboration to the allegation that the Appellant procured or counselled Peter Tahunimae to forge the letter, marked Exhibit 6. To that extent, may be no. But the delivery of the survey documents, the forged letter, and other documents to the Acting Surveyor General, at around 3.00 p.m. is capable in my view, of corroborating what Peter Tahunimae had stated in his evidence under oath that, after he had delivered the documents to the Appellant and the Appellant had signed the blue survey form, he then told Peter Tahunimae that he would proceed to the Land Survey Department. It follows that if the delivery and receipt of the documents by the Acting Surveyor General corroborates what Peter Tahunimae had said was told to him by the Appellant, then it is also capable of corroborating the fact that a meeting did take place in which those words were said. But apart from that meeting in the afternoon, I do not think that the corroboration can be taken any further.

The time or period in which the counselling was alleged to have taken place was in the morning. There was however, no independent evidence to corroborate that such a meeting possibly may have occurred and that what was alleged by Peter Tahunimae was discussed, was actually said that morning.

I have already pointed out how dangerous it is to accept everything that a witness had said on the basis that parts of that witness’s evidence had been corroborated. On the other hand, I accept that there is no rule of law which forbids the court from accepting and relying entirely on the uncorroborated evidence of the accomplice and entering a conviction.

The only clear basis on which the Courts of appellate jurisdiction will interfere is where either the conviction is unreasonable or that it cannot be supported having regard to the evidence.

Bearing in mind that there were seven points raised in support of ground 3(A), and that only points (i), (iii) and (vii) have been found in my view to contain inconsistencies, Am I satisfied nevertheless, that the convictions were unsafe and against the weight of evidence.

Assuming that the document attached to the survey forms (exhibit 8) and exhibits (9) and (10), was the letter marked Exhibit D2, then it is clear that the conviction would be unsafe and against the weight of evidence. The question however, is whether the inconsistencies that I have ruled upon are sufficient to render the convictions unsafe. With respect, the answer must be yes. Firstly, no satisfactory explanation had been provided as to the existence of Exhibit D2, and the whereabouts of the original of Exhibit 6. Why was the original of Exhibit 6 not produced? No satisfactory explanation has been provided on this. Secondly, the allegations of force or pressure are hardly tenable. The Appellant may have been upset at the withdrawal of the Land Tender Board’s acceptance, but that is the Appellant’s concern and problem, and of no concern to Peter Tahunimae. Whether the appellant won the tender for the land at Chung Wah to build his Office or not, would not make any difference it seems, to Peter Tahunimae. He had nothing to gain from the forgery, and if one looks closely at Peter Tahunimae’s actions, he actually was putting his career or job on the line. What amount of force or pressure would cause a person in Peter Tahunimae’s shoes to perform such a forgery. It seems that the pressure or force would have to be something real or substantive, and not insignificant. There is however, no evidence of such force or pressure. The explanation given by Peter Tahunimae is therefore not likely to be believed.

Finally, we have the uncorroborated evidence of a self-confessed forger who is an accomplice on the crucial matters that prosecution seek to rely on and that therefore any inconsistencies should be treated with extreme caution.

On these grounds I am satisfied the convictions are unsafe and against the weight of evidence and should be set aside.

As to ground 3(B), I am satisfied that the learned Magistrate did apply his mind to the use of the words “Lets get this bastard in j ail” by PW1, but ruled that there was nothing unnatural about such a comment.

To a certain extent however, one is entitled to say that PW1 may have had some animosity towards the Appellant, especially when at the time the expression was used, one would have thought that it was a bit too early to make such rash statements. Also when one considers that PWl was the one who had laid the complaint and that he also rang Peter Tahunimae to tell him that he would be a prosecution witness. Despite these factors, I am not satisfied that there was sufficient evidence before the learned Magistrate such as would put him on guard about the possibility of a plan to incriminate the Appellant. I dismiss this ground.

4. COUNT 4

(a) The particulars of the offence are defective and do not constitute the offence under section 85 (b) of the Penal Code. Section 85(b) reads: “Any person who-(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to procure, or attempt to procure, to, upon, or for any person employed in the public service, or to, upon, or for any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed, is guilty of a felony and shall be liable to imprisonment for 7 years.” The particulars of the offence read: “On 22nd December 1993, at Honiara corruptly gave $55.00 to Peter Tahunimae, a person employed in the Public Service, as a reward for writing a letter dated 21st December 1993 to the affairs or business of the said Yam & Company.” This appeal point can be shortly disposed of. The allegation is simply that a gift of a sum of money was corruptly made to a person employed in the Public Service (Peter Tahunimae), for purposes of forging a letter. I see nothing wrong with the particulars as drawn. Learned Counsel for the Appellant has not specified what aspects of the particulars are defective. The proper course of action is to state in sufficient detail which particulars are defective, and how they have been considered to be defective. It seems to me that what perhaps was meant was that the evidence does not bear this out. This is however a matter which can only be determined after a trial proper. This point therefore is dismissed.

4 (b). The conviction was unsafe and against the weight of the evidence in that the learned Magistrate accepted that the Appellant gave small sums of money to David Riki and Moses Foata for innocent reasons and yet believed the accomplice Peter Tahunimae was corruptly given $55.00 by the Appellant.

The evidence of Peter Tahunimae showed very clearly that the money was given on the following day, after the alleged forgery had been completed on the previous day (21st December 1993). There is no evidence whatsoever that a promise was ever made to Peter Tahunimae that he would be rewarded with a sum of money for his part in the alleged forgery. Neither is there any evidence to show that at the time of payment it was made clear to Peter Tahunimae that the sum of $55.00 was given as a reward for the forged letter that he had written. It is not for the court to draw assumptions as to what that payment may have been made for. It is for prosecution to prove beyond reasonable doubt that the payment was corruptly made. I am not satisfied that there is evidence which would show that the payment had been corruptly made. The payment could have been made in an entirely innocent light whereby, the payment was made in appreciation for Peter Tahunimae’s hard work or effort in having his application re-considered and accepted. It is possible that the Appellant’s reactions were not of a guilty man but of that of an innocent man who was over-joyed at the receipt of what he may consider for all purposes a genuine letter of re-allocation. Even the witness Peter Tahunimae did not know what the gift was for. The only evidence which was adduced was that he had not asked for the money. However, if one considers in comparison the evidence of David Riki, it will also be seen that the gift of $100.00 made to him was not asked for. It was merely assumed by David Riki that the payment was given because perhaps the Appellant had heard that his dad had been sick. Both witnesses however never bothered to ask what the gift was for. Perhaps it is considered impolite in our culture to ask, but in a working environment where relationships that are established are not based on custom, but largely arising from the nature of ones job or work, such payments or gifts of money should never have been taken for granted and accepted without question, or due inquiry made.

I am satisfied the belief cannot be supported by the evidence before the court.

(c) The learned Magistrate failed to consider or adequately consider why the Appellant should pay a mere $55.00 as a bribe for forging a letter.

This ground has already actually been covered earlier on in this judgment, and it would be sufficient to merely point out again that the mere payment of a small sum of money may not necessarily make any difference if both parties were in consort together, and were doing it not out of say financial renumeration but more out of other non-financial benefits. I am not satisfied however that there is evidence to show that a bribe had been made.

(d) The learned Magistrate failed to consider the possibility as raised in cross-examination that Peter Tahunimae has asked the Appellant for money on previous occasions.

Again this point in my view has been adequately covered under part (b). Even if the learned magistrate did consider the possibility that Peter Tahunimae had asked the Appellant money on previous occasions, it would not be material to the payment of the $55.00, on the basis that there is virtually no evidence therefore the court to show what that payment was for. Even the recipient did not know what it was for. He did not bother to ask, but merely accepted it.

(e) The learned Magistrate erred in law in convicting the Appellant of this offence on the uncorroborated evidence of Peter Tahunimae, an accomplice.

As already pointed out, it is not an error of law to rely on the uncorroborated evidence of an accomplice and to enter a conviction. The learned Magistrate is perfectly entitled to do so. Of course he must necessarily warn himself of the dangers of so doing, but it is not an error of law if after due consideration, he decides to enter a conviction.

Where the Appellate court’s powers maybe invoked, is when the decision reached is unreasonable or such as cannot be supported having regard to the evidence.

I am satisfied that the conviction cannot be supported having regard to the evidence and accordingly should be set aside as well.

The grounds of appeal on sentence do not apply.

The courts orders are that the convictions on counts 1, 2 and 4 are hereby set aside. Any payments of fine accordingly are to be refunded.

(A.R. Palmer)
JUDGE