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State v John [2000] PGNC 23; N1977 (15 June 2000)

N1977

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

Cr No. 640 of 2000

Between:

THE STATE

And:

OKUN JOHN

Accused

KUNDIAWA: KIRRIWOM, J
2000: 12th & 15th June

CRIMINAL LAW - Possession of forged note - defence of mistake of fact - knowledge - issue of reasonable belief - onus of proof - Criminal Code, ss.158, 25

CRIMINAL LAW - SENTENCE - Plea of guilty - Statement inconsistent with plea on allocatus - Plea of guilty abandoned

PRACTICE AND PROCEDURE - allocatus - statement inconsistent with plea - plea of not guilty entered - trial conducted.

Facts

This case began as a plea matter when the accused pleaded guilty to the charge of being in possession of a forged K50 note. But following his statement on allocatus the plea was changed to one of not guilty. The case then proceeded as a trial before the same trial judge with consent of both counsel. State case was based largely on the documents already before the court while the defence called the accused who gave evidence on oath. The issue in the trial was as to the reasonableness of the accused's belief that the money was a fake note. The court held (dismissing the charge):

(i) An essential element of the offence is knowledge that the prosecution must prove beyond reasonable doubt and the prosecution failed to discharge that burden;

(ii) The accused carried no onus of establishing lawful excuse or reasonable belief, which is the same as reversing the onus of proof contrary to section 37(4)(a) of the Constitution.

He Kaw Teh v R (1985) 187 CLR 523 adopted and followed.

Cases cited:
He Kaw Teh v R (1985) 187 CLR 523

Texts:
Criminal Defences by D O'Connor and PA Fairall, Third Edition, Butterworths, 1996
Constitution of Papua New Guinea.

Counsel:
Mr F. Kuvi for the State
Mr M. Apie’e for the Accused

15th June 2000

KIRRIWOM, J: In this case the accused pleaded guilty to being in possession of a forged K50 note upon arraignment. On his allocatus he confirmed that he had the money which someone gave to him to buy food and drinks at the store. However he said that he did not know that the money was a forged note. He believed it to be good and genuine money and he presented it at the store to buy the things he was asked to buy by the person who gave him the money.

His statement on allocatus rendered his plea equivocal as it raised some kind of defence as to mistake of fact. This was drawn to the attention of both counsel and it was agreed that the statement on allocatus had cast a different dimension to the plea so a plea of not guilty was entered and the case was proceeded with as a trial.

The State case consisted of the depositions of witnesses or statements compiled by the Police Investigation Team including the accused’s own record of interview and the exhibits which included a fifty kina note that was said to be forged, a PNGBC Savecard that belonged to someone else, a wrist watch, two business cards and a bank withdrawal slip.

What the accused said on allocatus raised the question of the accused’s knowledge and belief as to the true state of the genuineness of the money when in fact the opposite was the truth. The issue then appeared to be whether the accused’s belief was reasonable?

Section 158 reads:

s. 158 Possession of Forged Notes

A person who, without lawful excuse (proof of which is on him), purchases or receives from any person, or has in his possession, a forgery of a current note, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 4 years.

Following the State tendering of the depositions, the Defence called the accused as the only witness into the box. His evidence as generally reiteration of what he told the Police in the record of interview which was repeated to some extent on the allocatus. There were some minor inconsistencies regarding what he told the Police in his interview and what he told this Court. I do not consider them to be substantial. As far as the rice and tin fish are concerned the statements from the shop-keeper and his assistance confirm that he did ask for those items although he never mentioned them in the record of interview but he remembered enough to tell this Court. By his evidence the Defence purported to establish that the accused had no prior knowledge that the money was a fake and that his belief that the note was a genuine money was reasonable in the circumstances where he was given the money by someone he never knew before and asked to buy something at a store nearby.

The accused in fact said that the person followed him to the store and waited nearby when he went to buy the things from the store but when the shop-keeper began enquiring about the owner of the money the man disappeared. To establish reasonableness of the accused’s belief evidence was led to show that the accused was an unsophisticated villager from Jimi area of Western Highlands Province, uneducated and occasionally travelled into town such as Banz which is the nearest administration post and his familiarity with the various legal tender notes including K50 that occasionally come into his possession on coffee seasons.

State called no additional evidence by way of rebuttal but simply relying on the evidence in the depositions tendered, it attempted to counter the defence assertion by contending that:

1. There was never a third party on this particular day. The accused had the fake note all the time and he knew it to be false money and that is why he waited until it was very late in the day that he decided to use it at a trade-store and not at a main store in town.
   
2. Even if the accused was given the note by someone else, he was not altogether that naive to not differentiate between a genuine legal tender and a fake note of K50 being familiar with them as a coffee producer.
   

Mr Kuvi submitted that under the terms of the law, the State must show no more than the fact that the accused was in possession of the forged note without lawful excuse and this has been proven because he had the fake money and he presented it for payment of goods. He submitted that the onus was on the accused to prove that he had lawful excuse to be in possession of the forged note such as taking it to the Police.

Mr Kuvi conceded that ‘lawful excuse’ could also include the circumstance where the accused was given this note by another person and believing it to be a genuine tender he takes it to the store to buy things with it. But the Court must, it is submitted, firstly believe the accused’s version of the story for there to be a legal excuse amounting to a defence in law. I agree entirely with Mr Kuvi in his submission on this point.

Section 25 - MISTAKE OF FACT – of the Code provides:

(1) Subject to sub-section (2) a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

(2) The operation of sub-section (1) may be excluded by the express or implied provisions of law relating to the subject.

This provision is identical to section 24 of Sir Samuel Griffith’s Criminal Code of Queensland. What we are concerned with here is whether the accused had the necessary mens rea to be in possession of this forged K50 note. The only way to prove that he had the mens rea is to prove knowledge. And to prove that he had the requisite knowledge that the money was a fake, the onus lies on the prosecution. Since the case of He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523; 60 ALR 449; 59 ALJR 620; 15 A Crim R 203; there is a presumption of mens rea in those statutory offences where knowledge is a pre-requisite before the accused can be held to be criminally liable. The applicant in He Kaw Teh v R was arrested at Melbourne airport when an inspection of his suitcase revealed a false bottom containing 2.788 kg of heroine. He was charged with importation and possession of prohibited imports in breach of the Customs Act (Cth). The relevant sections made no reference to any specific state of mind such as knowledge, motive, attention or advertence. And the same goes in this case to Section 158 of the Criminal Code. The Victorian trial judge instructed the jury that proof of such elements was not required and that the burden of proving ‘an honest and reasonable mistake or reasonable excuse’ rested upon the accused. These directions were consistent with previous decisions of the Full Court, which accordingly dismissed the appeal. The matter went before the High Court of Australia which the High Court found in favour of the applicant. As the learned authors in the textbook Criminal Defences by D O’Connor and PA Fairall, Third Edition, Butterworths Publication, 1996 acknowledges the major shift in the legal position at p. 37:

‘The judgments extend beyond a bare interpretation of the Customs Act, an has a major impact upon the construction of statutory provision in Australia.’

The authors then go on to cite the general principles propounded in that case as extracted from Brennan, J’s judgment also at p. 36:

"(1) There is a presumption that in every statutory offence, it is implied as an element of the offence, that the person who commits the actens resis does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind.

(2) There is a further presumption in relation to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either:

(a) knows the circumstances which make the doing of that act an offence; or

(b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.

(3) The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind.

(4) The prosecution bears the onus of proving the elements referred to in (1) and beyond reasonable doubt except in the case of insanity and except where statute otherwise provides."

There is no doubt in my mind that section 158 is one of the identical provisions creating an offence without reference to any specific state of mind as alluded to in the case of He Kaw Teh v R and as such the principles cited above are of persuasive authority for t his Court to adopt in developing an underlying law as required by Schedule 2.3 of the Constitution. By implication however it is deducible that the Code by stipulating the requirement ‘without lawful excuse’ had indirectly envisaged some elements of the state of mind being exercised. And the least that the accused must have is the knowledge that he is in possession of a forged note or a fake money which is a continuing offence as long as he kept the money. The phrase ‘without lawful excuse’ in the section can be read to mean that possession per se does not create the offence because the section goes on to qualify what it means in that phrase by stating ‘proof of which is on him’ meaning that the accused carries the onus of proving that he had lawful excuse for being in possession of the note in question, implies that there must be knowledge that the note was not a valid legal tender or a current note but a forged one or a fake. In other words the physical act of the actus reus which is being in possession must be accompanied by the relevant mens rea which is knowledge.

Counsel advised me that this is the first time that this particular section has come under close scrutiny of the Court. In Kundiawa where I am sitting without library facility except a few handy text books that I have brought with me, and where I am without the Third Volume of the Access to Laws CD that is meant to be the answer to judges and practitioners problem who are constantly on court circuits in remote areas by providing easy reference materials on PNG cases and legislations compiled on CD with the click of a mouse on a portable computer, in other words, a mobile library, I have to do the best I can relying on text books and foreign cases cited therein. I am unable to find a corresponding provision in the Queensland Criminal Code Tenth Edition that I have with me. It seems that this particular offence together with all related offences under the heading offences relating to currency have been removed from the Code.

Accepting the High Court case of He Kaw Teh v R (supra) as correctly stating the law on statutory interpretation of section 158 of the Criminal Code, then to the extent that section shifts the onus of proving ‘lawful excuse’ on the accused is in contravention of the Constitution s. 37(4)(a) which states that "a person charged with an offence (a) shall be presumed innocent until proven guilty according to law but a law may place upon a person charged with an offence the burden of proving particular facts which are or would be peculiarly within his knowledge ...." This is not one of such offence where the burden shifts.

The prosecution carries the onus of proving guilt beyond reasonable doubt. Therefore to the extent that the section contradict the Constitution on the burden of proof, it is unconstitutional. It must be struck down in my view to the extent of its inconsistency with the Constitution.

In the State’s case, where is the evidence of mens rea or the knowledge? I find no evidence that the accused was aware or knew that the note was forged. In fact the evidence is to the contrary. It shows that the accused believed the note to be genuine money. He had no reason to think or believe that the money was not genuine. There is no reason to even suggest that the money was not genuine. The only time the money became suspect as a forged note was when it was presented to the store and the store-keeper suspected it to be a forged note. In a very cleverly manufactured forgery the fact that a current note is not a genuine one is not known until certified by an officer from the Central Bank and not otherwise. In this case the forgery is almost masterpiece and I can’t accept the evidence that the shop-keeper’s suspicion is conclusive proof of its fakeness or falsity.

The State had not called independent evidence to establish knowledge on the part of the accused that the note was fake. This is therefore the end of the State case. Whatever the suspicion held by the shopkeeper upon being presented the money is immaterial and of no consequence because there is no basis upon which the State could assert that an offence under section 158 had been committed. The end does not justify the means.

State case suffers also in a very basic way. There is no logical sequential evidence linking the K50 note that was exhibited in Court to the K50 handed over by the accused to the shopkeeper, from the shopkeeper to the Police and from the Police to the Central Bank expert. There are so many gaps in the evidence that I cannot be satisfied beyond reasonable doubt that all the witnesses are talking about the same forged note. I have examined the note before me and other than that it was an old K50 note that could been in circulation for long while since coming out of the print, to me it was good enough to pass as a genuine note to an unsuspecting eye. I could not for all intent and purpose at first glance if given that K50 note as a change for my shopping at a trade store pick out on my own accord whether that note was a fake or genuine without someone with a trained eye informing me that I have been spivved. I therefore found it rather unfair for the prosecution to expect the accused to know that the money was a fake by simply looking at and feeling it. But the prosecution was also asserting that the accused always had the money. There was no third party and the story about the third party is all false.

Given what I have stated herein, it is unnecessary for me to decide whether I believe the State version or the accused’s version of the story. The accused never carried any burden of proving anything according to the High Court case cited herein. It was the prosecution’s responsibility and it had failed to discharge that burden. But accepting the accused’s story on its face value, I have no reason to doubt its veracity. Prosecution had laid no basis for me to doubt the accused’s story which he maintained from day one of his arrest. It was not negatived nor rebutted in any way. The Court was asked infer knowledge on the part of the accused by the fact that once alerted by the shop-keeper of the falsity of the note, the accused went away pretending to look for the owner and disappeared for good. The Court was asked to presume therefore that the accused knew the money was fake all along. The other equally convincing theory is that once alerted by the shop-keeper that the note was a fake and the owner was nowhere in site to explain how he came to be in possession of it, the naive and unsophisticated after all. He was smart enough to inform himself that this was not his doing and there was no reason for him to submit himself to a potentially serious situation that was highly likely to land him in big trouble when he could just easily walk away from it and forget that he ever met this man who gave him the money. No-one can deny the fact that these days in every street or public places there are all kinds of con-men preying on the unsuspecting, the weak and vulnerable persons to take advantage of in many ways to do their dirty work. The circumstances of meeting described in this case is not too remote of belief. I don’t think it is unbelievable at all. I accept that the meeting as described by the accused did take place which was not rebutted.

All in all I am not satisfied beyond reasonable doubt that the accused had in his possession the forged K50 note with full knowledge that the note was not a real money but a forged or a fake note. In the circumstances I find the accused not guilty and I acquit him of the charge.
_________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor