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R v Manu [2000] TOLawRp 34; [2000] Tonga LR 386 (23 October 2000)

IN THE SUPREME COURT OF TONGA

R

v

Manu

Supreme Court, Nuku'alofa
Ward CJ
Cr 1219 and 1220/99

2, 3, 4, 5, 9, 10 October 2000; 23 October 2000

Criminal law — forgery — needed original documents for proof

The two accused were husband and wife and owned and operated a wholesale and retail business known as JM Store. They had a business licence so to do. In the course of their business they imported goods from abroad. Such goods were subject to duty, port taxes and wharfage all of which were calculated on the CIF value of the shipment. The invoices upon which the charges were based all relate to consignments of goods ordered from an Auckland company known as Fresha Exports Ltd and shipped either from New Zealand or the United States. The prosecution alleged a similar course of fraud by the accused through forged documents. The defence contested the admissibility of many of the prosecution documents.

Held:

1. The Court did not accept that the documents produced were properly certified copies of the original invoices and so the Court could not accept the documents as copies of the originals. They were clearly demonstrated to be copies of copies which, as the result of subsequent alterations, cannot have been the same as the originals. The various heresay accounts of their nature and origin were not evidence of those facts. Where forgery was to be proved by the prosecution, photocopies were not sufficient and the original should have been produced.

2. The prosecution failed to prove the falsity of the documents presented to the Tonga customs to the required standard in a criminal trial.

3. In all the counts, under both section 172 of the Criminal Offences Act and section 210(1)(e) of the Customs and Excise Act, the prosecution case depended on proof that the documents were forged. Both accused were acquitted on all the remaining counts.

Statutes considered:

Criminal Offences Act (Cap 18)

Customs and Excise Act (Cap 67)

Counsel for prosecution: Mr Tapueluelu
Counsel for both accused: Mr Tu'utafaiva

Judgment

These accused are jointly charged in an indictment of twelve counts of which 6 counts charge Knowingly Dealing with Forged Documents, contrary to section 172 of the Criminal Offences Act, and six corresponding counts charge Fraudulently Evading Customs Duty on Imported Goods, contrary to section 210(1)(e) of the Customs and Excise Act.

No evidence was adduced in relation to counts 5 and 6 and their corresponding counts 11 and 12 and the accused were both acquitted on those counts at the end of the prosecution case.

In counts 3 and 4 and 9 and 10, some of the documents listed in the indictment have not been the subject of evidence and those particular invoices have been deleted. This applies to invoices 13867, 13975 and 13980 in counts 3 and 9 and to invoices 15049, 1567, 15134, 15256 and 1617 in counts 4 and 10. The court has ordered that those invoice numbers be deleted and the accused are acquitted of the charges relating to those invoices.

The prosecution case in summary is that the two accused are husband and wife and own and operate a wholesale and retail business known as JM Store. They have a business licence so to do. In the course of their business, they import goods from abroad. Such goods are subject to duty, port taxes and wharfage all of which are calculated on the CIF value of the shipment.

The invoices upon which the charges are based all relate to consignments of goods ordered from an Auckland company known as Fresha Exports Ltd and shipped either from New Zealand or the United States. The prosecution alleges a similar course of fraud by the accused in each case.

The prosecution case is that, when the goods arrived in Nuku'alofa, the accused would produce a forged invoice purporting to be from Fresha. The dues they then paid as a result of that invoice were less than the amount to which they were properly liable because they understated the true value of the goods and also falsely stated that the value was CIF when it was, in fact, C&F. They further avoided any requirement to produce evidence of payment by falsely stating the consignment was prepaid when it was not.

When the various documents had been collected, the second accused was seen by the police and, apart from acknowledging that he operated JM store and identifying some of the allegedly false invoices, declined to answer the questions put to him by the police.

Neither accused gave evidence or called witnesses at the trial and so the case depends entirely on the evidence of the Crown witnesses.

At the outset of the trial, counsel for the defence indicated that he would be contesting the admissibility of many of the prosecution documents. I directed that the trial should proceed and I would then hear the objections at the end of the case and rule on their admissibility before considering the evidence in the documents themselves. I deal with that aspect of the case first.

The manner in which the prosecution sought to prove each element of the case was, as I have already stated, generally similar. I take, as an example, one of the invoices charged in counts 1 and 7 - number 13540 - all documents of which were produced to the court as Exhibit 6.

The bundle included a document headed "Certified Invoice" dated 23/12/96. It was from Fresha to JM Store and was for one full container load of 850 X 20 Kg Cartons Lamb Flaps with a selling price of NZ$33,660.00. That price was stated to be C & F. The section headed "Terms of Delivery and Payment" is blank. With the "Certified Invoice" is another invoice with the same date and number and relating to the same order which stated that payment was due by 06/02/97. That invoice also stated that insurance was the importer's responsibility under his marine open policy and it included various fees bringing the total C & F value up to NZ$33,770.00. Both copies were signed for Fresha by a Maria Mold. There is also a bill of lading for the same consignment issued on the same date.

The prosecution case is that those are the original and genuine documents.

When the goods arrived at Nuku'alofa a customs entry form was produced to the customs officers at the wharf by one of the accused or by one of their employees on their behalf. It was supported, as is required for clearance, by an invoice. That appears to be in the same form as the other "Certified Invoice" and it bears the same date and invoice number and refers to the same container of 850 cartons of lamb flaps. However there are substantial differences from the other "Certified Invoice". The selling price is quoted as NZ$28,050.00 and that is said to be the CIF value. In the section for "Terms of Delivery and Payment" is the word "pre-paid". The document has been signed for Fresha by a Shelagh Little. On the strength of that document, the customs officers calculated the various dues and they were paid.

The customs officer who was in charge of the investigation, Kelemete Vahe, gave evidence that, working on the basis that the first was the genuine invoice and the second a forgery, he estimated a total sum of T$1947.43 had been evaded on this consignment. He set out the basis of his calculation in another summary document he had prepared and which was also part of the bundle of documents produced as exhibit 6.

The other invoices produced which, on the prosecution case, are from New Zealand are signed in various names by employees of Fresha including some in the name of Shelagh Little. However, all those submitted by the accused to the customs in Tonga are signed in the name of Shelagh Little.

The only other document in that exhibit is a copy of an application by J M Store for an overseas transfer to Fresha of T$29,172.51 which was the equivalent on the exchange rate at the time of NZ$33,770.00. That application was dated 7/2/97 and is, the prosecution suggests, plainly the payment for this consignment according to the price and the terms of payment in the original invoice.

A number of receipts for telegraphic transfers were produced by employees of either the Bank of Tonga or the ANZ bank. There is no dispute that they are properly produced and admissible. The prosecution case is that they match the payment advice on the New Zealand invoices in the same way as occurred in exhibit 6.

On the face of those documents, the case could not be clearer but, as I have stated, the defence challenges the admissibility of the original documents from New Zealand. They were not, they say, produced properly and cannot be evidence of the truth of their contents. Without that, the very foundation of the prosecution case has not been laid and it must fail.

Mr Vahe explained how the investigation arose from complaints by other traders and he examined the invoices that had been tendered at the time of entry. He then wrote to JM Store requiring them to produce all their invoices. That inquiry related to imports from another supplier in Fiji and the request was ignored.

Further examination, however, revealed a similar state of affairs in relation to goods from Fresha and Mr Vahe then contacted the New Zealand customs and asked their assistance. The officer instructed to deal with the case there was Royce Davis. He gave evidence that he asked Fresha to supply various invoices, bills of lading and copies of telegraphic money transfers. Copies of these were then sent to him by courier and he forwarded them to Tonga.

He also made a report to his superiors in New Zealand that his examination of the copies of invoices and comparison with five randomly selected payments revealed very little resemblance to the "CIF" figures on the documents produced for clearance in Tonga. The discrepancies ranged from 6.9% to 53.02%. Of those five payments, two (invoice 13540 [count 1] and 13778 [count 2]) relate to the charges that the court is still trying.

Mr Davis went through the documents that had been exhibited in the trial and identified which were the documents he received from Fresha. They are the invoices and bills of lading the prosecution put forward as genuine.

When the documents arrived in Tonga, Mr Vahe worked on them and then passed them to Chief Inspector Soaki of the Tonga police. She was able to identify the various bundles of exhibited documents as the actual documents she had received from the Tonga customs.

Late in the trial, counsel for the prosecution sought an adjournment to adduce further evidence in relation to the documents. Counsel for the defence objected on the undisputable ground that this should have been done before the case came to trial.

However, I allowed a short adjournment and counsel then recalled Mr Davis who told the court that the customs law in New Zealand placed a duty on exporters and importers to keep all relevant documentation for 7 years. I accept that as a correct statement of that aspect of the law in New Zealand.

Mr Vahe was then recalled to explain that he had, during the trial, requested the New Zealand customs to send the original invoices but they had told him they were unable to find them. However, he asked that they certify true copies of the originals and that was done. Mr Vahe produced those certified copies.

With those documents is a memorandum from a Greg Smith of New Zealand customs stating that he took them to Fresha and saw the company accountant Brian Cambie certify them as true copies. Each of the suggested original invoices has a stamp for Fresha, signed by Cambie, to say that it is certified true copy. Quite apart from the hearsay element of that part of the evidence, it is noteworthy that there is nothing to say of what they were certified to be copies. Further examination shows that the documents certified were copies of the copy documents that had been worked on by the Tonga customs. They included the Tongan customs stamp and, in some cases, the calculations written on the document by the Tongan officers. From that it is plain that none of them can be true copies of the original invoices and leaves unexplained with which documents Mr Cambie compared them and certified them to be true copies.

All were photocopies (and poor ones) and Mr Vahe told the court that they were of the copies he had received from New Zealand originally which would appear to be correct.

Mr Tu'utafaiva submits that these documents are not and cannot amount to evidence of their contents. Without that, there is no evidence to say that the invoices produced by the defendants to the customs in Tonga were not true, accurate and original invoices.

By section 62 of the Evidence Act, the contents of any document must be proved by producing to the court the document itself unless it falls within one of the exceptions listed in sections 66 or 67. Mr Tapueluelu for the Crown submits these invoices fall into exception (e) of section 67 which allows secondary evidence of the existence and contents of a document when the original is a document of which a certified copy is permitted by the Evidence Act or any other Act in force for the time being in the United Kingdom to be given in evidence. He points to section 92 as making these copies certified copies under the Act.

Section 92 falls in Part V of the Act which deals with Public Documents but, as Mr Tapueluelu points out, section 92 refers only to 'a document' unlike the other sections in that Part which refer to 'public documents'. I cannot accept these invoices fall within that section. I am satisfied section 92 is limited to public documents and these invoices are certainly not such documents.

I do not accept either that these are properly certified copies of the original invoices and so, even if I had found certified copies of the original invoices would fall within that exception, I could not accept these documents are copies of the originals. On the contrary, they are clearly demonstrated to be copies of copies which, as the result of subsequent alterations, cannot have been the same as the originals. The various heresay accounts of their nature and origin, of course, are not and cannot be evidence of those facts.

However, I think the prosecution efforts to produce these copies ignores the main point. Whatever document the prosecution is producing to prove its case against these accused, it must be properly produced by a witness who can speak to its provenance. Where is the witness to say that these were accurate invoices or even that they were the actual invoices issued by Fresha? Where is the witness to say that the invoices produced by the accused to the customs here were not issued by Fresha? Where is the witness to say that the signature on those invoices is or is not that of Shelagh Little? Where is the witness to say that the money paid on the various telegraphic transfers was received by Fresha and credited to a particular shipment? Where is the evidence that there were no other transactions at the relevant time between Fresha and the accused or that no sum has been paid to correspond with the invoices produced to the Tonga customs?

I accept that New Zealand law requires companies such as Fresha to keep documents relating to imports and exports. That may make those documents an exception to the hearsay rule but it still needs evidence from someone who can testify that they are the documents that have been retained under that duty. There is no such admissible evidence.

The burden is on the prosecution to prove a criminal case. Even if the originals had been produced in court by the customs officers, the truth or otherwise of their contents would need evidence from the relevant officers in Fresha. No evidence of that nature has been called from Fresha either orally or by written statement.

The prosecution suggests that the signature of Shelagh Little on the invoices from Tonga is a forgery and that the Court can decide if that is so. Clearly section 76 allows the court to do so and it is clear the signature on the Tonga invoices appear somewhat different from that on the other invoices signed by Shelagh Little but where is the evidence that one is genuine? Without it the court can make no meaningful comparison and there is authority that, where forgery is to be proved by the prosecution, photocopies are not sufficient and the original should be produced.

If the prosecution really contends that the court can accept the documents produced by the customs officers as evidence of their contents, how is the court to decide about the documents (and original documents in this case) submitted by the accused to the Tonga customs and also produced in court by the customs officers? Would the same test not require the court to accept them as truth of their contents also and if so how can the court be satisfied that the prosecution has proved their falsity?

Cases such as this involving evidence from abroad pose evidential problems but they are matters that could and should have been covered by proper evidence. They have not been and the result is that the prosecution has failed to prove the falsity of the documents presented to the Tonga customs to the required standard in a criminal trial. In all the counts, under both section 172 of the Criminal Offences Act and section 210(1)(e) of the Customs and Excise Act, the prosecution case depends on proof that the documents were forged. Both accused are acquitted on all the remaining counts.