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Public Prosecutor v Weties [2008] VUSC 6; Criminal Case 70 of 2007 (11 March 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 70 of 2007

PUBLIC PROSECUTOR

-V-

JAMES WETIES

Coram: Justice C. N TUOHY

Date of Hearing: 25, 26, 27, 28 February, 6,7 March 2008
Date of Decision: 11 March 2008

Counsels: Mr. Lent Tevi for Public Prosecutor
Mr. Toa for Defendant

ORAL JUDGMENT

1. The accused Mr. Weties is charged by an information which contains two counts. Count 1 is "uttering a forged document". It provides that on the 3rd July 2007 at Port Vila, James Weties, knowing that a document namely a Government of Vanuatu cheque number 2154944 was forged, dealt with the document as though it was genuine. That is a charge under Section 141 of the Penal Code Act.
   
2. Count 2 is a charge of theft that reads as follows: that on 3rd July 2007 at Port Vila, James Weties, without consent of the Government of Vanuatu, fraudulently and without a claim of right made in good faith, took and carried away property, namely VT7.500.000, with intent to permanently deprive the Government of Vanuatu of the property. That charge is under Section 125 (a) of the Penal Code Act.
   
3. Both counts relate to a Government of Vanuatu cheque number 2154944 drawn on the Reserve Bank. The Court heard evidence that the cheque was dated 30th June 2007. It was for originally VT 20.000 and was payable to the order of one Charlie Sau. It was crossed "not negotiable". The cheque was issued in consequence of an LPO issued by the Ministry of Agriculture in respect of an invoice that was received from Charlie Sau for VT20.000 for lawn mowing services which Charlie carried out for the Ministry.
   
4. On the 1st or 2nd July 2007, Charlie Sau picked up his cheque from the Department of Finance and headed towards his bank. Up until that time everything was entirely normal and above board. While heading to the Bank after picking up his cheque, Mr. Sau received a phone call from an Indo-Fijian man named Salendra. He was already known to Charlie Sau. In fact,according to Charlie Sau, he owed money to Mr. Sau, namely VT75.000 which Salendra has taken from Mr. Sau on the pretence that he, Salendra, was an agent for the Seasonal Employment Scheme in New Zealand and that if Mr. Sau paid VT 75.000 to Salendra, Salendra would get him a place on the scheme.
   
5. Needless to say Mr. Sau did not get a place in the scheme so he was out of pocket to Salendra by VT 75.000. After making a call to him, Salendra met Mr. Sau in town. He offered to buy the Government cheque from Mr. Sau. Eventually after some negotiation, Salendra paid Mr. Sau’s debt, at least VT 70,000 of it, plus gave him VT 20,000 face value of the cheque and another VT20.000 as well and took the cheque in exchange. That was the last time Mr. Sau ever saw the cheque.
   
6. On 3rd July, within a day or two, cheque number 2154944 was presented at the National Bank of Vanuatu, Port Vila branch. The cheque was no longer for VT20.000. It was now made out for VT7.500.000. The payee was no longer Charlie Sau. The payee’s name on the cheque was now James Weties. That is the accused’s name. He had an account at the National Bank.
   
7. Immediately prior to the deposit of the cheque, the balance in his account stood at VT500. After the cheque was deposited into the accused’s National Bank account on 3 July, because it was a Government cheque, the National Bank allowed it to be drawn on immediately. The person who deposited the cheque withdrew VT4.500.000 in cash immediately after the cheque was deposited. The next day, 4th July, a further withdrawal of VT2.500.00 was made at the counter and three withdrawals of VT20.000 each were made from an ATM. That left a balance of VT440.500 in the account and, according to the evidence, it remains there still.
   
8. At an early stage in the trial it seemed that there might be an issue as to who it was that went into the bank on 3rd July and paid in the cheque and withdrew VT4.500.000. However that was put to rest by the evidence of the teller Nato Takere. She was a very good witness and a very good bank teller. She required identification before allowing the cheque to be deposited and drawn on.
   
   9. Q: "How do you know it was James Weties?".

A: "The name on the cheque was his and he presented the cheque with his ATM card.

Q: "What else?".

A: "A passport.

Q: "When he gave you the passport did you look at it?".

A: "Yes".

Q: "What did you observe on the passport?".

A: "I saw the signature on the passport and the ID photo and they were the same".

Q: "The signature same as what?".

A: "Same as the signature on the deposit slip".

Q: "The ID photo was same as what?."

A: "Same as the person standing in front of me".

Q: "What did you do with the ATM?".

A: "To verify he has an account with us and to verify his name and his signature".

It was only after she had done all that that she deposited the cheque and more particularly paid out on it immediately.

10. I am satisfied beyond any doubt that the man who deposited the cheque into the account of James Weties and withdrew VT4.500.000 from it was James Weties, the accused. It is also a reaonsonable fair and logical duction from all the evidence that he was the person who made the further withdrawals I have referred to. It was his account of course and he had the ATM card on the 3rd July and the ATM withdrawals were on the next day on 4th July and the withdrawal slip for 4th July to VT2.500.000 contained the signature which matched the signature on the deposit slip and the withdrawal slip for 3rd July. Furthermore there is no suggestion in the evidence that anyone else may have been responsible for the withdrawals. So I am satisfied that James Weties made the deposit and all the withdrawals on the 3rd and 4th July that I have referred to.
    
11. There are two other aspects of the evidence which need to be referred to specifically. The first is the evidence of a witness, a bus driver named Isaac Amos. Through a relative who was involved in some way with a man called Chris, who was another Fijian, Mr. Amos met the Indo-Fijian, Salendra. It was through his association with Chris and Salendra that Mr. Amos also met James Weties. This was over a period of months during the course of last year and I find from the evidence that Mr. Amos is talking about the general period in which these events took place. Mr. Amos was in the habit of being the driver for Salendra and Chris and he often drove them around wherever they wanted to go which was often the Anchor Inn and often a place at the Wharf Road where they were able to drink beer and kava. Sometimes Mr. Amos said James Weties was with Salendra and Chris. Sometimes Mr. Amos drank with Salendra, Chris and James Weties.
    
12. The important point about Mr. Amos’s evidence, as well as establishing a regular association between Mr. Weties and Salendra, is that he gave evidence that while they were having a drink together Mr. Weties said to him: "Amos when my cheque is ready I will give you some money".
    
13. The second piece of evidence which needs specific reference is the statement made by Mr. Weties to Police Officers Morris Seule and Fraser Tambe. The statement is in Bislama obviously. It was taken on the 1st August 2007 about a week after Mr. Weties have been brought back from Fiji and arrested, according to his evidence, somewhat roughly and unnecessarily at the airport on his arrival. But then remanded by the Magistrate’s Court to the prison and by the time that 1st August arrived, Mr. Weties had been some days in the prison rather than in the police station. He was taken from the prison to the police station to be interviewed.
    
14. There was an attack on the admissibility of the statement and I held a voir dire during the course of the trial after which I decided that the statement was admissible. Some further attack was made during the trial proper on the weight to be given to the statement. It was not signed as it should have been by Mr. Seule and Mr. Tambe, the two police officers present at the interview. Seule was the interrogator and Tambe was the witness. There is a place on the standard witness statement form which is used for their signatures. That space is not filled in. Seule and Mr. Tambe said that that was by oversight.
    
15. Mr. Toa put the proposition that they did not sign because what was written in the statement was not true. Officer Seule denied that. In any event I do not think that that proposition makes any sense. Mr. Seule gave evidence that what is in the statement is what the accused said in the interview. It would not make sense for him and Mr. Tambe to deliberately not sign the statement form if they were intending to deceive the Court about what was said by the accused in the interview. If they are prepared to lie to the Court about that, they would have no qualms about putting their signatures on the statement. It seems not really a sensible proposition to suggest that they would lie to the Court about what the accused said to them and write down something false, but then not sign it. That does not make any particular sense to me. I am satisfied that the explanation given really is the only reasonable conclusion for their failure to sign and that is that it was an oversight. Mr. Weties of course signed the statement as being his own.
    
16. While Mr. Weties may well have felt vulnerable and ill at ease in the interview, there was no evidence that he was ever threatened or subject to any real duress by the officers. I have no reason to think that the statement is not a reasonably accurate record of what the accused said. There is really no evidence to contradict that. The accused himself gave no evidence.
    
17. However, it is worth saying that a narrative statement is never as accurate as a verbatim question and answer statement, which is a point Mr. Toa made. Because with a narrative statement, the answers are filtered by the officer who is turning questions and answers into narrative. Neither of course is it as good as a tape recording or a video statement. Perhaps the time has come when facilities are installed in the Port Vila police station for video interviews. The technology is no longer anything surprising or particularly expensive. However in this case what we have to deal with is a narrative statement produced by the officer carrying out the interview as a result of questions put by him and answers given to him.
    
18. In the statement the accused said:
    

"Mi wantem mekem statement ia blong confirmem or admittim se I tru mi rememba gud se wan dei mi forgetem stret dei, man ia Salendra Indo-Fijian ia hemi kam luk mi long Akatis mo talem aot long mi se mbai hemi mekem wan cheque mo putum nem blong mi long hem so mi se I olraet from mitufala I bin mekem wan finis fastaem. So long nes dei Salendra I kam bak long taxi blong Henry mo tufala I pikimap mi long Akatis mo Salendra hemi givim cheque ia long mi. Long taem ia mi karem cheque ia No. 2154944 and amount hemi VT7.500.000 mo nem blong mi I stap long hem. Mi bin save gud se mi no bin entitle o gat wan Government cheque but from mi bin practisim long fes ples so mekem mi akseptem mo go askem cheque ia long NBV. Mi bin cashem long wan gel teller long NBV mo long taem ia mi withdrawem VT7.000.000 mo livim VT500.000 long account number blong mi. Mo mi karem VT7.000.000 ia mo kam givim long Salendra and hemi givim VT500.000 cash long mi so total mani we mi receivim long amount blong VT7.000.000 hemi VT1.000.000. Everi mani ia Salendra hemi karem and mi save talem se mi no save se cheque ia hemi blong hu mo mi no save se Salendra hemi go changem wea ples be mi save nomo tru, hemi kam talem se mbai hemi putum nem blong mi long wan cheque. Hemia nomo ol tru admission blong mi follem cheque number 2154944".

19. That was the prosecution evidence. I have not covered every bit of it but I have mentioned all the bits which I consider important to the decision in the case. The accused elected not to give or call evidence as was his right.

20. In closing addresses, Mr. Tevi submitted that in relation to Count 1 that the Court should infer from the circumstances that the cheque was forged and also from his statement that the accused knew that it was forged and he said that in depositing it into his bank account and drawing on it, he dealt with it as if it was genuine. So he submitted that the Court should convict on Count 1. On Count 2 he submitted that when the accused drew money from his account, that was a theft, that is, a taking and carrying away of the Government’s money without its consent.
    
21. Mr. Toa in relation to Count 1 he concentrated on the mental element. He submitted that on all the evidence the Court could not be sure that the accused knew that the cheque was forged. He emphasized the point that nowhere in the statement did the accused actually say that he knew that the cheque was forged and he submitted that there was a reasonable doubt on that element and that the accused should be acquitted. As far as Count 2 is concerned he again disputed the mental element which is dishonesty and he disputed that there was proof of a taking and a carrying away of the VT7.500.000 without the consent of the owner.
    
22. Before discussing the proof of the counts in detail, I remind myself that the burden of proof of essential element of each charge is on the prosecution which brings the case and remains on the prosecution through out the trial. The accused is not required to give evidence and the fact that he has not done so does not change the onus of proof which remains always on the prosecution.
    
23. The standard of proof is, of course, beyond reasonable doubt. The prosecution must prove each element of a charge beyond reasonable doubt before the Court can find the accused guilty of that charge. And finally I remind myself that I have to look at each charge separately.
    
24. I turn to Count 1. The prosecution must prove on this charge three elements before the accused can be convicted. The first element they have to prove is that cheque 2154944 was forged. The second element that they have to prove is that the accused knew it was forged. And the third element they have to prove is that knowing that, in that knowledge, he dealt with the cheque as if it were genuine.
    
25. The first issue is whether the cheque was forged. Forgery is defined in our Penal Code Act. I am not going to read the whole definition but I am going to read the first two parts of it which are particularly relevant. Section 139 is the section. It says:
    

(1) "Forgery is making a false document knowing it to be false with the intent that it shall in any way be used or acted upon as genuine whether within the Republic or not or that some person shall be induced by the belief that it was genuine to do or refrain from doing something whether within the Republic or not.

(2) For the purpose of this section the expression making a false document includes making any material alteration in a genuine document whether by addition, insertion, obliteration, erasure, removal or otherwise".

26. There is no direct evidence that the cheque was forged. Often in a case where a cheque is said to be forged, there will have been an examination by a specialist document examiner and alteration visually demonstrated to the Court by the use of high magnification photography or other technical means. That was not carried out in this case although I have no doubt that the necessary expertise would have been available to Vanuatu through its contact with neighboring countries. It may however have been thought that it was unnecessary in this case for direct forensic evidence of that sort.
    
27. Looking at the cheque itself, which was produced in evidence, as a lay person in the matter of forged documents, I cannot say that on visual examination it is forged. There is a slight misalignment if you look carefully at the line with the words and figures in it but what that means as a lay person cannot say. However there is a lot of circumstantial evidence here and I will list it first:
    
    1. cheque 2154944 was originally made out by the Government to Charley Sau and it was made out for VT20.000, that is unarguable
    2. Charley Sau did not bank his cheque, he sold it to Salendra. The Court knows that from Charley’s evidence.
    3. James Weties was an associate of Salendra at that time. Mr. Isaac Amos’s evidence establishes that.
    4. James Weties deposited the same number cheque 2154944 to his National Bank account.
    5. The cheque at that time was now made out to him and was for VT7.500.000
    6. James Weties was not entitled to cheque 2154944 nor indeed was he on the evidence entitled to any Government cheque at all.
       

The prosecution asks the Court to infer from all those circumstances that the cheque had been altered after it was given to Salendra and before it was presented at the Bank by the erasure of the original payee and amount and the insertion or the addition of James Weties as the payee and the new amount of VT7.500.000.

28. Courts are entitled to draw inferences from facts which have been proven and that is a common way of reasoning, both by Courts and by normal people. However inferences cannot be speculation. They must be fair logical and reasonable deductions from proven facts. In my view the overwhelming inference from the circumstances which I have outlined is that, indeed, between the time the cheque came into the possession of Salendra and its presentation at the Bank by Mr. Weties, the cheque had been forged, that is it had been altered with the intent set out in section 139. So I find that element of the charge proven beyond reasonable doubt. The cheque was forged alright.
    
29. Secondly that the accused know the cheque was forged. Usually when a Court has to judge the state of a person’s mind, the state of his knowledge, the Court again has to rely on drawing inferences from what an accused said or did at that time and the Court can also draw inferences from what the Court knows that the accused knew at the time. So from all that the Court is entitled to and does make a judgment about the accused’s state of knowledge at the time.
    
30. The following facts are relevant to the accused’s knowledge that the cheque was forged:
    
    1. the cheque he banked was made out into his name and for the very large sum of VT7.500.000
       
    2. he was not entitled to any Government cheque, let alone one for VT7.500.000
       
    3. he admitted in his statement that he knew he was not entitled to the cheque. He also admitted in his statement, "Mi no save se cheque ia hemi blong hu mo mi no save se Salendra hemi go changem wea ples". That is an implied admission that he knew that Salendra changed it, he said he did not know where he changed it or whose cheque it was. Furthermore he stated to the teller that the cheque was in payment of money due to him by the Government for his service in the Vanuatu Mobile Force. That was a lie. There is no evidence that he was entitled to such a sum for his service some years ago with the VMF and it show that he knew that the cheque was a false one.
       
    4. He withdrew almost all the proceeds of the cheque within a day of depositing it. That indicates that he may well have been concerned that payment might be stopped and that of course indicates knowledge that there was something wrong with the cheque.
       
    5. He admitted receiving the cheque from Salendra. It is certain that the cheque was altered while it was in the possession of Salendra and a fair and reasonable inference that it was Salendra who altered it.
       
    6. He admitted that it was not the first cheque made to him that he received from Salendra. He was regularly in the company of Salendra at this time as the evidence of Amos showed.
       
    7. He told Amos that he Weties would give Amos some money when his cheque was ready. The use of the word "ready" was significant. It implies that time was needed for the cheque to be made ready to cash.
       

31. From all these circumstances and facts I have no doubt at all that the accused knew the cheque was forged. It is not necessary to prove that he was there when it was done, nor that he knew exactly how it was done or what was done. He needs only to know that it was forged that is, that it was a false document within the terms of Section 139 (3) of the Penal Code Act.

32. Apart from all the other circumstances he must have known that a Government cheque made to him for a very large sum to which he had absolutely no right was forged. Even the simplest person would deduce that and I do not think that Mr. Weties is a simple person. So I find the second element very clearly proven beyond any doubt.
    
33. The third element is that he dealt with it as if it was genuine. That is proven. He paid it into his account and he withdrew most of it immediately in cash. So I find that third element proven and I find Count 1 proven beyond reasonable doubt.
    
34. Count 2 is a charge of theft. It is unfortunately necessary in this case to read the definition of theft because the definition sets out what it is the prosecution has to prove on a charge of theft. Again I will not read all of it but I will read the parts which are relevant. It is included in Section 122 of the Penal Code Act which says, subsection 1: "A person commits theft who without the consent of the owner fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent at the time of such taking permanently to deprive the owner thereof.
    

Subsection 3 says: For the purpose of subsection 1:

a) "Takes" include obtaining physical control

i) by any trick".

35. Section 122 of the Penal Code Act is actually a virtual copy of the definition of theft in the Larceny Act 1916 of the United Kingdom which has long ago been repealed there. It was repealed in the United Kingdom in 1968, but it is on the Larceny Act 1916 that our Section 122 is based. It is exactly the same except that in subsection 3 the words "physical control" are substituted for the word "possession".

36. The important part of the definition for the present case is that it must be proven that the accused took and carried away the thing stolen without consent of the owner. The thing that is alleged by the prosecution to be stolen and carried away here is VT 7.500.00 and it said that it was taken and carried away when the accused withdrew it from the National Bank. It is said by the prosecution that that money was owned by the Government and that taking away the money was without the permission of the Government. That scenario causes some serious problems to the prosecution in the circumstances of this case.
    
37. The first is that the Government was not the owner of the cash that was handed over to the accused at the National Bank of Vanuatu counter. It was the National Bank that owned that cash. By crediting the accused’s account immediately with the amount of the cheque and paying out nearly all of it to him in cash before ever receiving payment on the cheque from the Reserve Bank, the National Bank may have become a holder of the cheque in due course so as enable it to claim reimbursement from the Reserve Bank, even though the cheque was forged. That is a matter of banking law with which the Court is not concerned in this case. The point for the purposes of this case is that the cash paid to the accused was the National Bank of Vanuatu’s money not the Government’s. At the time the accused was paid the money the National Bank had not even presented the cheque to the Reserve Bank for reimbursement.
    
38. Another less important point that is worth mentioning is that on the prosecution’s own evidence the cash paid out to the accused was not actually VT7.500.000 as charged, it was VT7.060.000. VT440.000 remains in the accused’s account at the National Bank according to the evidence to this day, surprisingly enough. However that is a minor point.
    
39. What is even more fundamental than the issue of whose cash it was and how much it was, is that there has not been proven here any taking of the cash without the permission of the owner, the National Bank of Vanuatu. The National Bank intended to give ownership of the cash to the accused when it gave it to him over the counter and through the ATM machine, and it made a corresponding debit entry in his account.
    
40. At common law, which is reproduced in Section 122 of the Penal Code Act, there could not be a taking for the purposes of a theft charge if ownership or possession of the thing was obtained with the consent of the owner. There was an exception at common law which again is reproduced in Section 122 (3)(i). If physical control of the thing was obtained by a trick then you could be guilty of theft even if you got the control with the consent of the owner. However if ownership of the thing is obtained with the consent of the owner who intends to part with ownership then that is not theft even if the person who induced the owner to part with ownership, did it by a false pretence or by trick. Here when the cash was paid to him by the National Bank the accused received ownership of it with the consent of its owner, his own bank, the National Bank. The most essential element of theft, a taking without the consent of the owner is not proven and therefore the accused must be found not guilty of theft. Of course that does not mean that there has been no crime committed here, just that the particular crime charged "theft" is not proven and is not the appropriate charge.
    
41. I am quite satisfied from the evidence that the accused acted dishonestly and that he would have been proven guilty of the crime of obtaining property by false pretences under Section 124 of the Penal Code Act if he had been charged with that. I have therefore considered whether it is possible to convict him on that charge following trial on an information which charged him with theft.
    
42. There are a number of provisions in the Criminal Procedure Code Act which enable the Court to convict a person after a trial for offences other than the one that he is charged with. The most relevant one is Section 115 which says "Alternative verdicts in charges of theft"
    
    1. When a person is charged with theft and is proved that he received the thing knowing the same to have been stolen, he may be convicted of the offence of receiving although he was not charged with it".
       

Here there cannot be a receiving. He has not received property which has already been stolen. In this case there has been no prior theft, there has been no theft according to the law. There has been other offending but not theft. So he can not be convicted of receiving.

43. Section 115(2) provides "when a person is charged with obtaining anything capable of being stolen by false pretences and is proved that he stole the thing, he may be convicted of the offence of theft, although he was not charged with it". Unfortunately this case is the other way round. He is being charged with theft and in my view it would have been proven that he obtained by false pretences. Strangely enough Section 115 does not give the other alternative way. You cannot under that section convict someone of obtaining by false pretences when he is charged with theft.
    
44. Section 116 provides that a person charged with a lesser offence is not to be acquitted of that if a more serious offense is proven. Again that does not apply in this case. Theft and obtaining by false pretences are punishable by exactly the same maximum penalty, by the same Section 125 in fact. So neither one is more serious or less serious than the other.
    
45. The last possibility is Section 109 which says when a person is charged with an offence consisting of several particulars, a combination of some only which constitute a complete lesser offence and such combination is proved but the remaining particulars are not proved, he may be convicted of a lesser offence even though he was not charged with it. Again that does not apply here. These two charges have got a couple of essential particulars in common namely the necessity to prove dishonesty, but that is really all.
    
46. So the end result is that there appears to be no power in the law for me to convict the accused of the offence of obtaining by false pretences when he is not charged with it, but was charged with theft. The end result is the accused must be acquitted on Count 2, the charge of theft. That is because it is the wrong charge for the facts of this case.
    
47. Although as I have said that this charge is misconceived, in fairness to the prosecution it must be quite obvious that this is quite a technical issue legally and although the distinction between theft and obtaining property by false pretences is well known to those persons who are experienced in such prosecutions, they are not particularly common in Vanuatu in my experience.
    
48. I am aware that there are a series of trials of like nature to this one in which theft charges have been laid and obviously the prosecution may now wish to review and consider whether to amend the information in good time is appropriate. But the accused is convicted on Count 1 and is acquitted on Count 2.
    
49. Mr. Weties will be remanded to the 28th March 4:00 pm for further remand for sentence. I am not intending to sentence him then but I think that criminal cases should always be remanded to a date and criminal defendants should always be remanded to a date on which they have to appear. Bail will continue in the meantime. It is obviously no indication of what the end result might be.
    

Dated at Port Vila, this 11th day of March, 2008

BY THE COURT

C.N. TUOHY
Judge