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State v Kora [2009] PGNC 23; N3594 (24 February 2009)

N3594

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 1545 OF 2006

THE STATE

V

JACOB MAINA KORA

Waigani: Paliau, AJ
2009: 16th & 24th February

CRIMINAL LAW – No case submission – No case to Answer – Accused Acquitted/Discharged.

Cases cited:
The State v. Paul Kundi Rape [1976] PNGLR 96
The State v. Roka Pep (No. 2) [1983] PNGLR 287
Joshua Yaip Avini v. The State, SCRA 77 of 1996
The State v. Aloysius Kusi; CR 186/1999 (19th May 2008-Buka)

Counsel:
Mr. D. Ninkama & Mr. T Ai, for the State
Mr. G. Gora, for the Accused

DECISION ON NO CASE TO ANSWER

24th February, 2009.

1. PALIAU, AJ: The accused pleaded not guilty to one count of forgery. He was charged under s.470 (b) of the Criminal Code.

2. The State alleges that the offence took place on the 11th May 2006 at Bank South Pacific, Waigani Branch, National Capital District. The accused had in his possession a forged Westpac Bank PNG Ltd, Port Moresby Branch cheque for the amount of K 8, 454.00. The cheque was to have been drawn on the account of Oil Search Limited.

3. The State also alleges that the accused knew that the cheque was forged and he was unlawfully in possession of it.
   
4. The State called two witnesses namely Antonia Dru and Reserve Constable Dorothy Roe Atabe. Antonia Dru is a BSP Waigani Branch Telling Supervisor. The State tendered by consent the following documents as evidence:
   
   • - Record of Interview, English Version as Exhibit "A";
   • - Statement of Antonia Dru, as Exhibit "B"
   • - Affidavit of Dorothy Roe Atabe, as Exhibit "C"
     
5. The Defence Counsel made a no case to answer submission after the State formerly closed its case.
   
6. The law in relation to a no case submission is well settled in the case of The State v. Paul Kundi Rape [1976] PNGLR 96. The Supreme Court case of Roka Pep v. The State (No. 2) [1983] PNGLR 287 followed the principles pronounced in this case.
   
7. In the State v. Aloysius Kusi, CR 186 of 2007, unnumbered, Buka 19th May 2008, I referred to the above cases and stated that:
   

"The above cases to me simply mean that at the end of the State’s evidence whether there is some evidence if accepted by me would go towards proving the element of the offence directly or by its existence or presence I am able to draw conclusions from. It is simply a question of law whether the accused could lawfully be convicted on the evidence presented thus far. It is not a question of fact to be determined at this stage whether every element of the offence is established beyond reasonable doubt. The question is decided at the end of all the evidence both for the State and Defence."

8. And so, in the present case, after the close of the State’s case, is there some evidence if accepted by me would go towards proving the elements directly or by its mere existence or presence. I am able to infer from. Is there established some element of the offence of forgery.
   
9. Section 470(b) of the Criminal Code provides as follows;
   

"470. Purchasing forged bank notes.

A person who, without lawful authority or excuse (prove of which is on him) –

(a) ....................................; or
(b) has in his possession,

a forged bank note, whether filled up or in blank, knowing it to be forged, is guilty of a crime."

10. The elements of forgery under Section 470(b) are:
    
    • (a) A person
    • (b) Without lawful authority or excuse
    • (c) Who has in his possession
    • (d) A forged bank note, whether filled up or in blank
    • (e) Knowing it to be forged.
      
11. To my mind the only element that are in contention and whether there is evidence of them are without lawful authority or excuse and knowing it to be a forged bank note. In so far as the elements in relation to a person and who has in his possession are concerned, it is my view that any person at all can be in possession of a cheque. The issue is whether that person knew that the cheque is forged and that he was illegally in possession of it.
    
12. Although there is no doubt that the accused was in possession of the cheque, there is no evidence that the accused was illegally in possession of the cheque. There is also no evidence that the accused knew that the cheque was forged.
    
13. The accused was a third party being given a cheque to deposit. This is allowed to by the Bank as evidenced by the Telling Supervisor, Antonia Dru.
    
14. The accused offered to assist the investigating officer by escorting him to go and see Mr. Lele Moimoi who gave him the cheque. The investigating officer rejected this offer for reasons of lack of vehicle and no extra manpower.
    
15. I am of the view that the accused was genuine in his offer of assistance to the investigating officer. If he knew that the cheque was forged or he had no authority to be in possession of the cheque, he would not have offered that assistance.
    
16. At this juncture, I wish to state that I accept the cheque as part of the evidence because it was acknowledge by the accused in his Record of Interview, which is already admitted as evidence. The case of Joshua Yaip Avini v. The State, SCRA 72 of 1996 is the case in point.
    
17. The evidence so far adduced by the State does not support the essential elements of the offence of forgery. The accused therefore cannot be lawfully convicted on the evidence as it stands.
    
18. The accused has no case to answer and therefore acquitted and discharged forthwith.
    
19. The accused bail money of K300.00 is refunded forthwith upon presentation of receipt.
    

Ordered accordingly.

_______________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused