Alex Tongayu v The State
| Jurisdiction | Papua New Guinea |
| Judge | Bona J,Kaumi J,Narokobi J |
| Judgment Date | 25 April 2023 |
| Neutral Citation | SC2380 |
| Citation | SC2380, 2023-04-25 |
| Counsel | Appellant in Person,C Langtry, for the Respondent |
| Docket Number | SCRA NO 24 OF 2021 |
| Hearing Date | 25 October 2022,26 April 2023 |
| Court | Supreme Court |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA NO 24 OF 2021
Alex Tongayu
Appellant
v.
The State
Respondent
Waigani: Bona J, Kaumi J, Narokobi J
2022: 25th October
2023: 26th April
APPEAL — Whether conviction on two counts of forgery under s 462(1) of the Criminal Code was safe.
FORGERY — Electronic Forgery — Whether it falls within the class of forgery within s 462(1) of the Criminal Code — Whether element of production was proven from the admissible evidence.
EVIDENCE — Whether trial judge correctly considered the evidence and applied it.
CIRCUMSTANTIAL EVIDENCE — Whether trial judge excluded all reasonable inferences, other than the guilt of the appellant.
The Appellant was found guilty by the National Court on two counts of forgery contrary to s 462(1) of the Criminal Code that he forged the instruments of the Minister appointing him to the position of Acting Registrar of Companies and Acting Chairman of the Securities Commission of Papua New Guinea. He was sentenced to three years imprisonment. He appealed both conviction, and sentence, but only pursued the appeal against conviction at the hearing of the appeal.
Held
(1) Each of the elements of the offence of forgery under s 462(1) of the Criminal Code were considered to the requisite standard, that is proof beyond reasonable doubt to determine the guilt of the appellant. That is, that the accused:
(a) made a false document or writing or seal;
(b) knowing it to be false and with intent that it may in any way be sued or acted on as genuine;
(c) to the prejudice of a person OR with the intention that a person, in the belief that it is genuine, be induced or refrain from doing any act.
(2) “Marking” although computer-generated, but imposed on to a physical document, such as a paper is “a document” within the meaning of the word as it is defined in the Criminal Code (s 459(1)(b)(ii)) for purposes of s 462(1) of the Criminal Code.
(3) The absence of an expert witness relating to signatures does not mean the trial judge cannot assess handwriting evidence, but the court must warn itself of the danger of not relying on expert testimony before reaching its findings.
(4) An inference pointing to the innocence of an accused, must be a reasonable inference and not a mere conjecture.
(5) There was no error of the trial judge's conviction of the appellant on two counts of forgery contrary to s 462(1) of the Criminal Code on the basis that the guilt of the appellant was not just a rational inference but the only rational inference of the guilt of the appellant in all the circumstances.
(6) Appeal was therefore dismissed.
Cases Cited:
John Beng v The State [1977] PNGLR 115
Paulus Pawa v. The State [1981] PNGLR 498
The State v Baine [1990] PNGLR 1
Yugari v State (2018) SC1691
Statutes Cited:
Criminal Code
Counsel:
Appellant in Person
C Langtry, for the Respondent
Public Prosecutor: Lawyers for the Respondent
25th April, 2023
1. BY THE COURT: The Appellant was found guilty by the National Court of two counts of forgery contrary to s 462(1) of the Criminal Code that he forged the instruments of the Minister appointing him to the position of Acting Registrar of Companies and Acting Chairman of the Securities Commission of Papua New Guinea. He was sentenced to three years imprisonment. He appealed both conviction, and sentence, but only pursued the appeal against conviction at the hearing of the appeal.
Background
2. The State brought an indictment containing two counts of forgery against the appellant and established that the appellant was guilty of both counts.
3. The two counts read:
Count 1: forged a document purporting to be the Revocation of Acting Appointment and Appointment of Registrar of Companies pursuant to Section 394(2)(1)(b) of the Companies Act 1997.
Count 2: forged a document purporting to be the Revocation of Acting Appointment and Appointment of the Chairman of the Securities Commission of Papua New Guinea pursuant to Section 4(4) of the Securities Act 1997 (repealed).
4. It was not in contention at trial that the appellant's appointment as Chairman of the Securities Commission was revoked in National Gazette G788 of 20 October 2016 by the complainant, Honourable Richard Maru, then Minister for Trade, Commerce and Industry. The appellants appointment as the Registrar of Companies was also revoked by the complainant in the National Gazette.
5. What was in contention, which the trial judge found to have been proved on the requisite standards was that between 1 May 2017 and 7 June 2017 the appellant forged, or caused the forgery of two documents which restored him to his former positions. The documents were appointment instruments purporting to be:
(a) The Revocation of Acting Appointment and Appointment of Registrar of Companies pursuant to Section 394(2)(1)(b) of the Companies Act 1997; and
(b) The Revocation of Acting Appointment and Appointment of the Chairman of the Securities Commission of Papua New Guinea pursuant to Section 4(4) of the Securities Act 1997 (repealed).
6. The State proved at trial that the two documents were forged by adding to each document a marking purported to be the signature of the complainant. The appellant than gave both documents to officers from the Investment Promotion Authority who took them to the Government Printing Office for publication. As a result, National Gazette number G441 was published which gave legal effect to the appellant's appointment as Registrar of Companies and Chairman of the Securities Commission of Papua New Guinea.
7. The State proved beyond reasonable that when the accused added or caused the addition of the marking purporting to be the signature of the complainant to each of the instruments, he contravened s 462(1) of the Criminal Code.
Appeal Grounds
8. The following grounds of appeal have been raised.
The conviction is unsafe and unsatisfactory in that—
1) The trial judged erred in law and fact when it satisfied itself that electronic forgery had occurred when there is no evidence of what electronic forgery is and how it is done in this case and using which electronic device especially when the only expert witness was a handwriting expert, therefore the element of production was not proven beyond the reasonable standard of reasonable doubt.
2) The trial judge erred in law and fact when deciding whether to accept the appellant's evidence when it said at paragraph 246 and 247 of its judgment respectively, that the critical discrepancy in the court's view is:
a. That the appellant had distanced himself from the instruments of appointment altogether, that he effectively said Mr Timea acted on his own however this was never stated by the appellant in the memo given by him to the IPA in support of Mark Timea's response to the charge served on him by the IPA or in any of the appellant's evidence.
b. In addition, the court erred to say that the appellant knew that the complainant was not angry with him in June 2017 when there was no evidence of this being communicated to the appellant at the time.
3) The trial judge erred in law when dealing with circumstantial evidence particularly when the court agreed that other reasonable inferences existed other than the guilt of the accused as stated in paragraph 255 and 258 of its decision, which made the conviction unsafe.
4) The trial judge erred in law and fact when accepting the evidence of the handwriting expert when the State did not provide evidence of the original or genuine signatories of the complainant to compare with the alleged forged signatories on Exhibits “P1” and “P2” and “D15” through State witness Richard Maru or by providing them to the handwriting expert for them to establish the differences in signing if any.
5) The trial judge erred in law and fact when she did not consider exhibits “D15” which State witnesses, Mr Johnny Bogombari admitted in evidence that exhibit “D15” was given to him or received from Mr Chris Nigis, the First Secretary of Hon. Richard Maru and looked different from the actual forged exhibits “P1” and “P2” therefore how could the court be certain that the electronic forgery was produced by the appellant.
6) The trial judge erred in law and fact I sentencing the appellant to spend three (3) years in prison on the sole basis that the reputation of the Securities Commission and the Investment Promotion Authority's reputation had been tarnished especially when there was no evidence of this provided by the State through the Probation Reports or a Victim Impact Statement.
9. The appellant abandoned grounds two and six of the appeal. The sixth ground related to appeal against sentence. We therefore do not consider grounds two and six of the appeal.
Issue
10. From the appeal grounds, the main contention is whether the conviction should be set aside as it was unsafe or unsatisfactory pursuant to s 23(1)(a) of the Supreme Court Act. Was there a reasonable doubt in all the circumstances of the case of the safeness or satisfactoriness of the conviction? (John Beng v The State [1977] PNGLR 115). This question will be determined by considering the following issues:
• Whether this was a case of electronic forgery that fell within the class of forgery under s 462(1) of the Criminal Code?
• Whether the element of production in the offence of forgery under s 462(1) of the Criminal Code was proven beyond reasonable doubt from the admissible evidence?
• Whether trial judge correctly excluded all reasonable inferences, other than the guilt of the appellant?
11. Considering these issues will enable us to determine the appeal grounds to arrive at the conclusion as to whether the conviction reached by the trial judge was safe or not.
Decision of the National Court
12. We feel that it is appropriate that we spend some time discussing the judgment on conviction. We do so for the reason that the trial judge went to great lengths to consider all the evidence from both the State...
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