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State v Kondi [1991] PGNC 4; N956 (18 February 1991)

Unreported National Court Decisions

N956

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
STATE
V
JOHN KONDI

Mount Hagen

Woods J
14-15 February 1991
18 February 1991

CRIMINAL LAW - Forgery & Uttering - Circumstantial Evidence - Onus on State to present all relevant evidence.

Counsel:

J. Kesan for the State

K. Wagaro for the Defendant

18 February 1991

WOODS J: The Ad John Kondi is chargcharged that on the 27th of July 1990 at Mount Hagen he forged a withdrawal form on a savings account with the South Pacific Bank and that he uttered that forged withdrawal and obtained K450 belonging to Karepa Community School.

The State’s case is that the Accused was on the Board of Governors for the Karepa Community School. He was one of the 3 signatories to the passbook account and apparently he was the treasurer of that Board of Governors. The passbook was held by the Chairman of the Board of Governors Mr Kapal Kosip. On the 27th of July the Chairman Kapal was at the school to look after the school as the teachers had all gone to town to collect their pay and the students were sent home. He was there by himself at the school and had left his bag with the passbook in it in the office. While he was outside mowing the Jawn the Accused came saying that he wanted to do something in the office and he went inside there for sometime. He then came out an hour or so later.

The chairman said that when he picked up his bag from the office, the savings passbook was missing. Later that day a withdrawal was made from the account with the South Pacific Bank of the sum of K450 under the three authorised signatures.

The other two signatories Wi Victor and Nou Karup both gave evidence and say that they did not sign that withdrawal form for K450 and that their signatures on the form are not their real signatures. These signatures are the signatures of people who may not be able to read or write properly and this was confirmed by their evidence in the witness box. The Accused signature is a much more elaborate signature. The other two signatories deny any authorisation for a withdrawal of K450.

The evidence against the Accused is circumstantial and shows that there was a clear opportunity to obtain the passbook. The evidence also relies on the ease with which the other two signatures could be forged and the obvious feature that the Accused’s own signature could not easily be forged.

The Accused denies the charges and he denies taking the passbook out of the Chairman’s bag that day. He admits that it is his signature on the withdrawal form but he states that in June and July there were four withdrawal forms signed by him and the other signatories for moneys for school activities but only three of these withdrawals had been made prior to the withdrawal of the 27th. And thus by implication he implies that there had been a fourth withdrawal form lying in someone’s possession and that was the one used here. The Accused gave this explanation when interviewed by the Police in August and again in Court.

The State’s evidence implies that the Accused was the only person who could have taken the passbook from the Chairman Kapal’s bag and it is clearly the Accused’s signature on the withdrawal form and other two signatures have been forged. The case against the Accused being circumstantial, one must be very careful in assessing circumstantial evidence and one must be sure that all the loose ends in the circumstantial evidence are tied up. Are the circumstances such as to be inconsistent with any reasonable hypothesis other than the guilt of the Accused. I cannot help noting that there are two serious omissions from the evidence. Firstly the bank transaction card to confirm or challenge the Accused reference to three or four transactions in June and July noting that the Chairman himself referred to four withdrawals. The second serious omission from the evidence is that the Accused is named as the Treasurer of the Board. He gave no evidence of his role as Treasurer nor of any record or notebooks kept by the Board or the school covering proposals to apply funds out of the bank account. And nor did the State cross-examine him on this point that he was Treasurer. Now these two omissions in the evidence are very simple matters. They are not matters that were unknown to the State they are not matters that would have been a surprise in court. The State was put on notice in the record of interview of the explanation of the Accused. So whose responsibility is it to bring these aspects of evidence to court. Whilst they must be part of the Accused defence and therefore should or could have been part of the Accused defence, they are not matters out of the knowledge of State.

The State’s case relies on circumstantial evidence therefore surely the onus is on the State to tie up every link within it’s knowledge in such a circumstantial case. In view of the explanation of the four withdrawal forms and only three being used it was well within the State’s power and quite an easy exercise to obtain the Bank transaction card from the Bank. I do note that the passbook apparently has been lost, there was vague reference to that at some stage in the evidence but you do not need the passbook. You can still get the bank transaction card to confirm or deny the evidence about the transactions. Also surely it was up to the State to cross-examine the Accused on his role as treasurer and where were the records if any records were kept of the decisions to apply money from the account.

The State has failed to tie up all the links in a chain of circumstantial evidence. I find that the inference of guilt is not the only inference from the evidence before me. There is a possibility however slight that there was careless management of the account. I publish these reasons as a guide to the State when relying on circumstantial evidence in such cases. Bank Statements and treasurer’s cash books can and would assist in finding the true picture of what happens in the operation of a bank account or in management of funds. I therefore find the Accused not guilty as charged.

Lawyer for the State- State Prosecutor

Lawyer for the Defendant- Public Solicitor