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State v Merimba [2022] PGNC 77; N9481 (14 March 2022)

N9481

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 311 & 314 OF 2021

THE STATE

V

PAUL WAGHI MERIMBA

Waigani: Berrigan, J
2021: 18^th, 19^th August, 14^th October
2022: 14^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – VERDICT – S460(2)(a) of the Criminal Code – Forgery – S 23(2) of the Criminal Code - Claim of Right - S 463(2) of the Criminal Code – Uttering.

In 1976 two brothers, the complainant and the accused, incorporated Mendikwae Ltd. Both were directors and held 50% of the company with 1 share each. Since then the company has grown to be worth almost K100 million. In January 2015 the complainant increased the share capital of the company to 100 shares. 60 shares were allocated to the complainant and 10 shares each were allocated to his wife and two of his children. The remaining 10 shares were allocated to the accused. The changes were made without the knowledge of the accused and in the absence of consideration. The effect of the changes was to reduce the accused’s shareholding in the company from 50% to 10%. The State alleged that the accused forged the minutes of a board of directors meeting dated 10 May 2016, falsely resolving to return the shareholding of the company to himself and his brother 50:50, and that the accused also forged a notice of change of shareholder (share transfer) form of the same date stating that 10 shares each had been transferred from the complainant, his wife and two children to the accused in consideration for cash. The State further alleged that the accused uttered the documents by lodging them with the Investment Promotion Authority. The accused gave evidence at trial that he signed both documents, and provided money for their registration, but denied knowing that the contents of the documents were false. The accused also submitted that he had acted in an honest claim of right as his shareholding in the company had been reduced in 2015 without his knowledge and agreement.

Held:

1. On Counts 1 and 2, the evidence established beyond reasonable doubt that the accused forged the notice of change of shareholder (share transfer) form, and the minutes of the board of directors meeting dated 10 May 2016, that is he made the false documents; knowing them to be false; with the intent that a person, namely the Registrar of Companies, or an officer at the IPA, in the belief that the documents were genuine, would be induced to do or refrain from doing any act, that is to alter the company’s records with the effect of restoring his 50% shareholding, contrary to s 462(1)(2)(b) of the Criminal Code. The evidence also established beyond reasonable doubt that it was the accused’s intention that the Registrar of Companies, or an officer at the IPA, act to their prejudice, in performing their functions under the Companies Act, that is to act on the notice of change of shareholder (share transfer) form, which they would not have done if they had known it was false, contrary to s 462(1)(2)(a) of the Criminal Code.
   
2. On Count 2, the notice of change of shareholder (share transfer) form was a thing purporting to be, or intended by the accused to be, or to be used as a transfer or assignment of a share in a company for the purposes of s.462(3)(b)(i) of the Criminal Code.
   
3. On Count 3, the evidence established beyond reasonable doubt that the accused uttered the false notice of change of shareholder (share transfer) form by lodging it with the IPA. The evidence did not establish beyond reasonable doubt that the accused uttered the false minutes of the board of director’s meeting.
   
4. The offences of forgery and uttering a document relating as they do to property as defined in s. 1 of the Code are offences relating to property within the meaning of s. 23(2) of the Code: R v Magalu [1974] 188. It is the accused’s conduct with respect to that property, the document, that the application of s 23(2) must be considered.
   
5. The accused could not be excused under s 23(2) of the Criminal Code. The defence of claim of right was not sufficiently raised on the evidence. The accused’s evidence was not that he forged or dealt with the documents in an honest belief that he was entitled to do so but that he made and uttered the documents without knowing they were false. Furthermore, regardless of the accused’s belief with respect to his entitlement to shares in the company, the defence was excluded in circumstances which established beyond reasonable doubt that the accused knew that forging and uttering the documents was wrong and that he had no honest belief that he was entitled to do so.
   

Cases Cited:
Papua New Guinean Cases

R v Magalu [1974] 188
The State v Joseph Maino [1977] PNGLR 216
Paulus Pawa v The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
The State v John Yambra Pai (1986) N535
James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173
Maladina v The State (2016) SC1495
Rolyn Yugari v The State (2018) SC1691
The State v Epei (2019) N7845
Wartoto v The State (2019) SC1834
Roland Tom v State (2019) SC1833
The State v Solis Ima (2020) N8676
Kaya v State (2020) SC2026
State v Merimba (2021) N9129
Kane v State (2022) SC2201

Overseas Cases

Peacock v the King [1911] HCA 66; (1911) 13 CLR 619
Welham v. Director of Public Prosecutions ([1961] AC 103; [1962] Qd.R. 580
Olsen v. The Grain Sorghum Marketing Board; Ex parte Olsen & Anor [1962] Qd.R. 580.
R v Pollard [1962] QWN 13
Balcombe v. De Simoni [1972] HCA 9; (1972) 126 CLR 576)
Scott v Metropolitan Police Commissioner [1974] UKHL 4; [1975] AC 819
Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108
R v Kastratovic (1985) 19 A Crim R 28
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
De Gruchy v The Queen [2002] HCA 33; 211 CLR 85
R v Gatzka [2004] VSCA 121
R v Waine [2005] QCA 312
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573

References Cited

Sections 1, 23(2), 145, 459, 460, 462, 462, 463 of the Criminal Code.

Counsel

Ms L Jack, for the State
Mr J Haiara, for the Offender

VERDICT

14^th March, 2022

1. BERRIGAN J: The State charged the accused, Paul Waghi Merimba, with two counts of forgery, contrary to ss 462(1) and 462(3)(b)(i) of the Criminal Code, and one count of uttering, contrary to s 463(2) of the Criminal Code.
   

Count 1 Paul Waghi Merimba of Garamago Village, Gembogl Simbu Province stands charged that he between the 1^st day of May 2016 and the 31^st day of May 2016 at Port Moresby in Papua New Guinea forged the signature of MATHIAS MERIMBA on a Board of Directors of Mendikwae Limited Meeting Minute dated 10 May 2016 purporting to be meeting minute, resolving to transfer 50% of the company’s shares to MATHIAS MERIMBA and 50% of the company’s shares to the said PAUL WAGHI MERIMBA.

Count 2 Paul Waghi Merimba of Garamago Village, Gembogl Simbu Province stands charged that he between the 1^st day of May 2016 and the 31^st day of May 2016 at Port Moresby in Papua New Guinea forged Investment Promotion Authority Form 13 purporting to be a notice of change of shareholders, from MATHIAS MERIMBA, ALEESHA MERIMBA, JOE LOUIE MERIMBA and VINCIO MERIMBA to MATHIAS MERIMBA and the said PAUL WAGHI MERIMBA.

Count 3 Paul Waghi Merimba of Garamago Village, Gembogl Simbu Province stands charged that he between the 1^st day of May 2016 and the 31^st day of May 2016 at Port Moresby in Papua New Guinea knowingly and fraudulently uttered false documents namely a Board of Directors Meeting Minute dated 10 May 2016 and Investment Promotion Authority Form 13 purporting to transfer company shares from one MATHIAS MERIMBA and ALEESHA MERIMBA, JOE LOUIE MERIMBA and VINCIO MERIMBA to MATHIAS MERIMBA the said PAUL WAGHI MERIMBA.

2. The State alleged that the accused forged the signature of Mathias Merimba on a document purporting to be the minutes of a meeting held by the Board of Directors of Mendikwae Ltd on the 10^th of May 2016, resolving to transfer all shares in the company to the accused and Mathias Merimba at the ratio of 50:50, when in fact there was no such meeting or resolution. Further, that the accused attached the minutes to a forged notice of change of shareholders (share transfer) form, Form 13, stating that 40 shares were transferred to him by Mathias Merimba, Aleesha Nakita Merimba, Joe Louis Merimba and Vincio Merimba, in consideration for cash, on 10 May 2016, when no such transfer was made or consideration given, and uttered the false documents by lodging them with the Investment Promotion Authority (IPA).
   

UNDISPUTED FINDINGS OF FACT

3. A number of facts are not in dispute and are established on the evidence.
   
4. In 1976 the complainant, Sir Mathias Merimba, and the accused, his younger brother, both now in their 70s, incorporated Mendikwae Limited. They each held the position of director, and one share each of a total two shares, in the company: Exhibit P2, Mendikwae Ltd Company Extract as at 18 March 1976 produced from the IPA’s records by Russell Doa, Enforcement Lawyer with the Legal and Compliance Unit at the IPA, in his affidavit of 13 August 2021, Exhibit P1. See also Exhibit D4, Certificate of Incorporation dated 18 March 1976.
   
5. Since then the company, which operates in the hotel and property industries, has grown to be worth almost K100m: Exhibit D2.
   
6. In January 2015 the shareholding of Mendikwae Limited was changed. Issued shares in the company were increased from 2 to 100 ordinary shares. 60 shares were allocated to the complainant, and 10 each to Aleesha Nakita Merimba, his wife, and Joe Louis and Vincio Merimba his sons. The remaining 10 shares were allocated to the accused: Exhibit P5.
   
7. The changes were effected through documents lodged with the IPA. On 16 January 2015 Gigmai Towa, Mendikwae’s former Company Accountant filed a Form 10, Notice of Issue of Shares, signed by the complainant on 9 January 2015, with the IPA, increasing the number of shares from 2 to 100, and stating that 10 shares each had been transferred to Aleesha, Joe Louis and Vincio by Sir Mathias in consideration for cash on 9 January 2015. Gigmai Towa also prepared minutes of a Board of Directors meeting purportedly held by Mathias Merimba and the accused on 6 January 2015 at which it was resolved that the company’s authorized capital be increased to 100 ordinary shares of K1 each and that the shares be allocated as described above: Exhibit D1, Attachments A and B.
   
8. The effect of the changes was to reduce the accused’s shareholding in the company from 50% to 10%.
   
9. No changes were made to the directors of the company at that time.
   
10. On 26 April 2016 the accused wrote a letter to the Registrar of Companies, stating that he had become aware of the redistribution. He attached copies of the minutes of the purported meeting of 6 January 2015 and the Form 10 dated 9 January 2015. He said that he could not recall any meeting, that the changes were done in his absence, that they should not be recognized, but that he did wish to “take any issue out of the changes” as it was a family company. He suggested that if any disputes arose in the future they should all be called to the IPA to resolve them by mediation: Exhibit D1.
    
11. On 21 May 2016 a Form 13 under the Companies Act 1997, entitled “Notice of Change of Shareholder (Share Transfer)”, signed by the accused as director on behalf of Mendikwae Ltd on 10 May 2016 was filed with the IPA stating that 10 shares each from Mathias Merimba, Aleesha Nikita Merimba, Joe Louis Merimba and Vincio Merimba had been transferred to the accused for cash, on 10 May 2016: Exhibit P3. This document is the subject of the allegation in Count 2.
    
12. Also dated 10 May 2016 are the minutes of a Mendikwae Ltd Board of Directors meeting signed by the accused, and purportedly signed by the complainant, stating that at a meeting attended by the complainant, the accused, Aleesha Merimba and Joe Louis Merimba, in the absence of Vincio Merimba, the Board of Directors resolved that all shares be transferred to the complainant and the accused in the ratio 50:50: Exhibit P11. This document is the subject of the allegation in Count 1.
    
13. On or about 20 October 2016 a Form 16 under the Companies Act, Notice of Change of Directors, was filed with the IPA by Gigmai Towa removing the accused as a director of the company: Exhibit P7. The form was accompanied by minutes of a meeting held by Sir Mathias in which he resolved that the changes made on 10 May 2016 were void and of no effect, being fraudulent as he was not present and his signature forged, and stating that 10 shares each were to be transferred by the accused to the complainant, Aleesha, Joe Louis and Vincio, leaving the accused with 10 shares: Exhibit P8.
    
14. In October 2016 the accused’s shareholding in the company was removed entirely: Exhibit P4. From the oral evidence it appears that he was removed as a director about the same time.
    
15. On 3 February 2017 Malis Miningi, Deputy Registrar of Companies, wrote to Sir Mathias and the accused, expressing concern at the various changes made to the company’s structure and advising that the IPA intended to restore the company’s records to those at the date of incorporation unless all relevant documentation was produced to support the changes. The complainant and accused were directed to attend a meeting at the IPA on 9 February 2017: Exhibit P6.
    
16. The meeting took place at the IPA on 23 February 2017. The accused attended with his son, Mathew. The complainant attended with a number of persons including the company’s accountant, lawyer and company secretary.
    
17. At some point prior to 4 April 2019 the complainant reported the accused to the police for forging P3 and P11.
    
18. On 7 June 2019 the accused commenced legal proceedings, OS No 388 of 2019, currently before the National Court seeking, inter alia, declarations that the changes made in January 2015 were void and of no effect and orders returning the shareholding and directorships to their original position: Exhibit D3.
    

STATE CASE

19. The complainant, Sir Mathias Merimba, and his son, Joe Louis Merimba, gave evidence via video link from Brisbane, Australia: State v Merimba (2021) N9129.
    
20. The complainant is the accused’s older brother. He is a businessman operating hotels and other property through the company, Mendikwae Ltd. He started the company in 1976 “but in the PNG way appointed his younger brother, the accused, to be a director”. The accused did not put up any capital and has never run or made decisions about the company. At some stage the accused was given a store at West Goroka to collect rent, which he did for 9 years. The company is his alone and in 2015 he gave 10% of the shares each to his wife and children. He kept 60% for himself. He gave the accused K2m for his shares. In May 2016 the accused stole from him by taking 50% of the shares, which was never authorised. It was discovered only because it appeared in the daily newspaper. They were shocked and reported the matter to police. There was no board meeting on 10 May 2016 and no transfer of shares. The accused used the same biro to forge his signature on the minutes. Following that the complainant removed the accused entirely as director and shareholder of the company.
    
21. Louie Joseph Merimba, the complainant’s son, is a businessman and operates a retail business in Goroka. The minutes of 10 May 2016 is a fabrication. He was not present at the meeting. There was no such meeting and he never agreed to sell his shares to the accused.
    
22. After the IPA meeting shareholdings were restored to the original position. A few months later Mendikwae Ltd called a meeting in Goroka on 7 November 2016. The accused and other family members attended and discussed everything that transpired and the accused was terminated for his actions. The decision was made by the complainant, the owner and boss of the company. The accused was paid K2m and given several properties belonging to the company. The accused was a director on paper only, meaning he had no financial authority as a cheque signatory, or decision-making authority as a company director. He was just his father’s brother. He made no other contribution. Louie is now a director of the company, Exhibit P4, but “on paper only”. The shareholders are “on paper only”. They have no say. It is his father’s company.
    
23. Under cross-examination he said he was present when K2m and properties were handed over to the accused. The properties included a house at Goroka, West Goroka Trade Store, Kainantu Lodge and a coffee plantation. He did not see the transfer instruments or contracts but it was agreed at the meeting. He agreed that his father has since restrained the accused from collecting rentals from the West Goroka Trade Store. The property has not been transferred to the accused. He explained that at the time of the termination a cheque and properties were given to the accused and his sons as part of a severance package. The accused responded with a civil case, which enraged his father, who decided that he would go to court and battle it out. He strongly denied that he and his father stole the accused’s interest in the company. It was his inheritance from his father.
    
24. Gigmai Towa was Mendikwae’s Company Accountant for eight years to 31 December 2019. He reported directly to the Managing Director, Mathias Merimba, and no one else. In January 2015 he was instructed by the Managing Director to allocate some shares to his wife and children. Pursuant to the complainant’s instructions he prepared Forms 13 and 15, and the meeting resolution, for Sir Mathias’ signature, and lodged them with the IPA: 60% to the complainant and 10% each to Aleesha, Joe Louie, Vincio and Paul Waghi Merimba. In October 2016 he went to the IPA to do a routine check on the company and could not believe it when he was given an extract showing that the shareholding had been changed. The documents were false. It said that he had lodged Exhibit P3, when he did not. He had no knowledge of the changes made. He showed the complainant, who instructed him to remove the accused entirely from the shareholding, which he did. The accused is the younger brother of the complainant. He was generally doing things “here and there” in the company, with no specific task. He was a director of the company but he (Towa) reported only to the complainant, who is the owner of the company, the chairman, Managing Director and sole authority.
    
25. Under cross-examination he agreed he has a Bachelor of Commerce, is a CPA, and has been an accountant for 33 years. He agreed that the issuing of 98 shares in 2015 resulted in a reduction of the accused’s shareholding from 50% to 10%. He said he was just following instructions from the complainant, who is the owner of the company. It was wrong for the accused to reinstate himself because he was not authorised by the complainant. The accused’s shareholding was “on paper only”, that is what was required to incorporate the company in 1976. The company is the complainant’s; he decides.
    
26. Russell Doa, is the Enforcement Lawyer with the IPA, with whom he has been employed for six years. He produced a number of records from the IPA’s records, including Form 3, Exhibit P3. Exhibit P3 contains an IPA stamp which is placed on the document when it is lodged over the counter. It is marked for the purpose of processing and scanned on to the system. He does not know which counter officer initialled it.
    
27. A Form 3 is usually accompanied by company minutes. He is unable to say whether it was accompanied by minutes in this case because the minutes, P11, do not contain any Registry stamp. All meeting minutes are stamped. He did not recognise the minutes himself.
    
28. On observing the changes in the company’s shareholdings he informed his supervisor, Deputy Registrar of Companies, Mr Miningi. Seeing that it was an old company and that the directors were biological brothers they called the directors to attend a meeting to resolve the issues themselves: Exhibit P6. At the meeting the parties argued. The matter was not resolved. The IPA relied on the records as of February 2015 and told the parties they could resolve the dispute outside the IPA.
    
29. Under cross-examination he agreed that he assisted the accused when he came to lodge a complaint about the restructuring of the company in January 2015. He recognised D1. Attached to the letter were the minutes of the meeting purportedly held on 6 January 2015 and bearing an IPA stamp.
    
30. He agreed that it appeared that the shares were issued without the accused’s approval. Shares can be bought and sold. It is not a matter for the IPA but stamp duty would have to be paid. There are no documents on record at the IPA showing that anyone paid for the accused’s shares. He agreed that it is illegal to transfer shares without proper documentation, and without paying statutory duties and fees, and that there is no such evidence in the IPA’s records.
    
31. There was no resolution at the meeting of February 2017. It was a heated argument and so the IPA decided to go back to the 2016 position and they could deal with it in their own way.
    
32. He agreed that he served both the complainant and the accused personally. They were coming and going back and forth, doing changes “here and there”. The accused communicated with him occasionally in English but mostly in pidgin. The accused did not fill in P3 in front of him. He may have given general advice to the accused about what to do to change the records. As to whether he told him Form 13 was the correct form to fill he initially said he was not sure, but then said, “No”, he would have told the accused he would have to brief the Registrar which he did and the outcome was the meeting held.
    
33. The accused is wrong. He did not give him the form to fill to make the change. He did not fill in any form himself. He did not prepare any documents to make the changes. He agreed with the suggestion that the accused might not read English but he maintained that the forms were not filled out by him, signed by the accused, and submitted by him.
    

Record of Interview

34. The State placed great reliance on the admissions contained in the accused’s record of interview.
    
35. The State was on notice that the accused disputed the record of interview as an accurate record. Questions of fabrication or accuracy are matters for the trial proper: The State v Joseph Maino [1977] PNGLR 216; The State v John Yambra Pai (1986) N535. It was incumbent on the State to establish the process by which the interview was conducted, the persons present, the process of questioning, how and by whom the interview was recorded, whether the accused was given an opportunity to read the record, and the circumstances in which the record was signed.
    
36. At trial the investigating officer, Sergeant Michael Sewode, said that the interview was conducted with the accused, in the presence of himself, the corroborator, Constable David Toro, and the accused’s son, Mathew Merimba. This is consistent with the record of interview itself, which also states that the accused said that he would speak to his lawyer later.
    
37. Sgt Sewode initially said in cross-examination that in accordance with police requirements he printed out the original pidgin version of the record immediately following the interview, and gave it to the accused, who read it and signed it. He agreed, however, that in his prior written statement he said that the accused came back and signed the record the following day, and that he did so without reading it. Inconsistent with his evidence in chief, he said in cross-examination that the accused’s lawyer was present during the record of interview, arriving part way through. This is not reflected in the record of interview itself. On the face of it the accused’s son also signed the pidgin original record of interview but no evidence was given about this.
    
38. The State made no attempt to clarify Sgt Sewode’s evidence in reexamination. Despite the matter being fixed for trial well in advance the State did not call the corroborator as he was on recreational leave. Whilst there was some cross-examination about the admissions made, the State did not cross-examine the accused about the circumstances in which the interview was conducted or signed, nor the role of the accused’s son, nor clarify whether in fact the accused’s lawyer was present at the time he signed.
    
39. The accused’s evidence about the record of interview was limited and at times contradictory.
    
40. It is the case that the State may be able to rely on a record of interview even when an accused declines to read it before signing despite being given an opportunity to do so, or even if it is unsigned, for instance when an accused refuses to sign despite participating in the interview voluntarily, provided the circumstances in which the admissions are made are clear.
    
41. In this case, however, it is my view that given the inconsistencies in Sgt Sewode’s evidence, the lack of clarity as to the circumstances in which the interview was both conducted and signed, the lack of corroboration in this regard, taken together with the possibility that the record was signed a day later and before it was read, it would be dangerous to rely on the admissions contained in the record of interview and I disregard them.
    

DEFENCE CASE

42. The accused gave evidence in his own defence. He was born in 1948, is about 72 years old, and the younger brother of Sir Mathias. When he learnt about the changes to the shareholding of the company he complained in the letter he wrote to the IPA, Exhibit D1. He delivered the letter to the IPA. He was accompanied by Joel and Bonnie, his nephews. He gave the letter to Russell Doa, who told him he was going to assist him by filling in the paper. He told him to return the following day, which he did. Joel accompanied him but stayed outside. The accused had with him K100 for registration, which he gave to Russell. He went to Russell’s office. Russell gave him the Form 13. Russell filled in the form. Russell told him to sign the form. He did not prepare Exhibit P11, the meeting resolution. Russell gave him P11. He signed it where his name is, and left it with Russell. He has subsequently been removed entirely as a shareholder by his brother and has commenced legal proceedings: Exhibit D3 is the originating summons in OS No 388 of 2019 filed 7 June 2019.
    
43. He and the complainant together generated money, AUD40,000 or PGK40,000, to start the company from coffee sales. He became a Member of Parliament in 1987. David Gagma was employed to be a manager to replace him. After leaving politics he resumed his position in the company as a manager. The complainant gave him dividends every year but his share in the company is worth in the millions.
    
44. As to whether the complainant gave him money for his shares, the complainant came and told him very strongly that he would pay him for all his shares in the company. He did give him K2m as a dividend but his shares are worth much more. There was no agreement with the complainant and his children to buy his shares. They reported him as a criminal but in reality they are criminals.
    
45. Under cross-examination he maintained that he and his brother both contributed to the funding of the company equally at incorporation. They both obtained the loan from the bank. He is a director like the complainant. He agreed that he was angry that the complainant changed his shareholding in 2015 without holding a meeting. He agreed that he drew up the false Board of Director’s minutes dated 6 May 2016. He agreed it was false because no meeting took place on that day. He took steps to make the shareholding 50:50. When shown P11, however, he said that the lawyers at the IPA wrote it up and he signed where his name is. He did not forge the complainant’s signature. He just signed and left. He signed P3 on 10 May 2016. He gave K100 for registration. They changed it in the legal way. He was paid K2m after he was removed. He was not given any properties, only K2m.
    
46. He did not really speak or write in English. He was educated to Grade 6. He did not know what “resolution” meant. He obtained the pen for signing the minutes from his boys, his relatives, who were waiting outside. Joel knows Russell.

FORGERY

47. Section 462(1) creates the offence of forgery. It provides:
    

(1) A person who forges any document, writing or seal is guilty of an offence that, unless otherwise stated, is a crime.

Penalty: If no other punishment is provided–imprisonment for a term not exceeding three years.

48. Section 460(2) provides the definition of forgery:
    

(2) A person who makes a false document or writing, knowing it to be false, and with intent that it may in any way be used or acted on as genuine, whether in Papua New Guinea or elsewhere–

(a) to the prejudice of a person; or

(b) with intent that a person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Papua New Guinea or elsewhere,

is said to forge the document or writing.

49. To establish the offence of forgery the State must prove beyond reasonable doubt that the accused:
    1. Made a false document or writing;
    2. Knowing it to be false;
    100. With intent that it may in any way be used or acted on as genuine, whether in Papua New Guinea or elsewhere:
         1. to the prejudice of a person; or
         2. with intent that a person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Papua New Guinea or elsewhere.

Kane v State (2022) SC2201; Rolyn Yugari v The State (2018) SC1691.

CIRCUMSTANTIAL CASE

50. The State’s case against the accused is partly circumstantial. The principles governing such a case are well established. In a case resting wholly or substantially upon circumstantial evidence, an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498 (approving The State v Tom Morris [1981] PNGLR 493, adopting Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 quoting Peacock v the King [1911] HCA 66; (1911) 13 CLR 619. See more recently Maladina v The State (2016) SC1495. The bare possibility of innocence should not, however, prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence: Peacock v. The Queen at p. 661.
    
51. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence: see the comments of the High Court of Australia in De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at [48] referred to in The State v Epei (2019) N7845.
    
52. All of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Paulus Pawa (supra). The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Baden-Clay at [46] to [47]. The essential elements of the offence must be proved beyond reasonable doubt but it is not necessary for every fact, or every piece of evidence, relied upon to be proved beyond reasonable doubt: Shepherd v R, supra at [6].
    
53. It is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. Where an accused chooses to give evidence, however, that evidence may narrow the range of alternative hypothesis reasonably available upon the evidence: Baden-Clay at [54], [55], [62] and [63].
    

COUNT 2, EXHIBIT P3, FORM 13, NOTICE OF CHANGE OF SHAREHOLDER (SHARE TRANFER) FORM DATED 10 MAY 2016

54. It is not in dispute and I am satisfied beyond reasonable doubt that the Form 13, notice of change of shareholder (share transfer) form dated 10 May 2016, P3 is a false document. The material particulars stated in the document kept by the IPA are untrue: s 459(2)(a) of the Criminal Code. There was no transfer of shares by Mathias, Aleesha, Joe Louis or Vincio Merimba to the accused in consideration for cash on 10 May 2016 or at all. The company did not authorise the said transfers to be registered with the IPA, nor did the persons named, and it was not filed on behalf of the company by its accountant, Gigmai Towa: s 459(2)(b) of the Criminal Code.
    
55. Whilst the complainant might properly be regarded as a difficult witness his evidence that there was no meeting on 10 May 2016, and no transfer of shares, was compelling, as was that of Joe Louis and Gigmai Towa. The accused does not suggest otherwise.
    
56. I am also satisfied beyond reasonable doubt that the accused made the false document, knowing it to be false.
    
57. In reaching this conclusion I have had regard to the undisputed facts. I have also considered the evidence of all witnesses, including the accused. In doing so I have had regard to the content of the evidence of each witness, on its own and in the context of the evidence as a whole, together with the demeanour of the witness whilst giving evidence, and bearing in mind that I may accept or reject any part of a witness’ evidence: Maraga v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173.
    
58. It is clear from the evidence of the complainant, his son, Gigmai Towa and the accused himself, that the complainant is the Managing Director and controlling mind of Mendikwae Ltd. It is not possible on the evidence to say with certainty to what extent the accused contributed financially to the establishment of the company or the extent of his role in its management. Regardless of those matters, the accused had been both a director and shareholder of the company for forty years. For the State witnesses, and the State Prosecutor, to suggest that this was “on paper only” is fundamentally wrong. Those positions convey both significant obligations and entitlements at law. Moreover, those facts, particularly the drastic reduction of the accused’s shareholding in a multimillion kina company are highly relevant circumstances in this case and provide the context in which the alleged offending took place. The “paper” at the heart of this case was worth K50m.
    
59. The complainant initially gave some evidence that he gave the accused K2m for his shares in 2015 but his evidence as to whether it was 2015 or 2016 was ultimately not clear, nor was it supported by any documentation. Whilst Joe Louis gave evidence that monies and numerous properties were provided to the accused, this was not until late 2016 and after the alleged offences. Certainly, he did not suggest that he provided any consideration for the shares he received in 2015 to the accused. Towa, the company accountant, agreed that there was no agreement for the complainant and his wife and children to purchase the accused’s shares in 2015, and he simply drew up the transfer and the accompanying minutes at the direction of the complainant; a startling admission by an accountant.
    
60. In the circumstances, I find that the accused’s shareholding in the company was reduced from 50% to 10% in January 2015 without his knowledge and agreement, and without the payment of any monies in consideration at that time.
    
61. By his own admission, the accused was angry about it.
    
62. By his own admission, the accused signed P3, the notice of change of shareholder (share transfer) form.
    
63. I reject the accused’s evidence that Russell Doa, the lawyer at the IPA, drafted P3, and that he signed the document without reading or understanding it.
    
64. Whilst Russell Doa agreed that he received the accused’s letter of complaint, D1, from him, he calmly and emphatically denied that he filled out P3, or the minutes of the meeting, P11, and I accept his evidence.
    
65. I was impressed by his demeanour under rigorous cross-examination. Furthermore, it flies in the face of common sense that the Enforcement Lawyer at the IPA would put his career in jeopardy to assist the accused not only by drafting documents which were false in several and detailed respects, involving a number of different individuals, of his own volition, but without informing the accused of their contents. This is particularly so given that it was inevitable that the transfers would become known at some stage, and even more so given that it was almost exactly what the accused had alleged in his letter to the Registrar of Companies that his brother had done. There is nothing to suggest that Doa had any relationship with the accused, or stood to benefit from the transfer of the shares to the accused. The suggestion that Doa knew one of the accused’s relatives was made very late in the accused’s evidence, was not put to Doa in cross-examination and was not shown to be of any relevance on the evidence.
    
66. I reject the submission that Doa was unreliable because paragraph 8 of his affidavit, which stated that he and Mr Miningi asked everyone at the IPA meeting in February 2017 which of the changes made to the company structure were correct and that it was agreed that the changes of October 2016 were correct, was inconsistent with his testimony that the parties could not agree and the IPA decided to let them resolve it outside. Paragraph 8 could have been better expressed but it must be read in the context of the affidavit as a whole and in particular paragraph 7 which states that it became clear to Mr Miningi and himself during the meeting that the changes made by the accused in May 2016 were done without authorisation. It was in that context that it was decided that the changes made in October 2016 should remain.
    
67. As for the accused’s evidence, I reject it.
    
68. The accused is educated to at least Grade 6. On one hand the accused says that he “does not really” read English. Yet his own letter of 26 April 2016, Exhibit D1, addressed to the Registrar of Companies, at the IPA, which he confirmed in evidence he wrote, and on which he heavily relies, establishes otherwise.
    
69. It is a one page letter, written on the accused’s own letterhead, in English. Whilst it contains some very minor typographical and grammatical errors, it is an articulate and well considered letter. What’s more it demonstrates an understanding of company procedure, the role of the Registrar of Companies and the import of lodging company records:
    

“My name is Paul Wagi Merimba. I am popularly called by my people as Chief Wagi Merimba. I am a former Member of Parliament who represented the people of Kundiawa Gembogl from 1987 to 1992.

I have also been a director of Mendikwae Limited since its incorporation in 1976. My elder brother, Sir Mathias Merimba, is the other director and also the Managing Director. We were the only shareholders with one share each since the incorporation.

Recently I have done a search at the Company Register and discovered that there was a re-issuing of shares done on the 9 January, 2015. From the search I have discovered that a meeting of directors was allegedly held on the 6 January, 2015 at 10:00 am in Granville Motel where the only agenda was the shares. New shares were issued to our family members. My shares were reduced to 10 including the previous 1 share. A copy of the meeting resolution is attached as “A”.

I am not aware of the meeting because I was never involved. I cannot recall attending a meeting and coming up with such a resolution. It was probably done in my absences. This is wrong. The changes cannot be recognized and registered by the Registrar of Companies.

A form 10 was also completed and lodged with the minutes. The Form 10 is attached as “B”. The company extract confirmed the new shares. The extract is attached as “C”.

Mendikwae Limited is a family company. I do not want to take any issues out of the changes. My only concern is that I was never informed nor involved in the meeting to re-issue the shares. This action may break the law of business.

I am writing to you to register my concern so that it can be placed on record in the file. If any issue arises in the future, we all can be called to your office to discuss over it and solve it through by way of a medication before you.

Please place my concern on the company’s file and thank you for your time.”

70. Whilst denying in evidence that he knew what a resolution was, his own letter discusses the purported “meeting resolution”, and its significance, and attaches a copy.
    
71. The accused recognised the letter immediately in examination in chief, and did not suggest that he was in any way assisted in drafting it by another person.
    
72. He also had no difficulty identifying Mendikwae’s Certificate of Incorporation and several other documents registered at the time of the company’s incorporation, Exhibit D4, including: a “notice of situation of registered office and of office hours, and particulars of changes”, a “list of persons who have consented to be directors”, a “return giving particulars in register of directors, managers, secretaries and changes of particulars”, a “return of allotment of shares”, a “statutory declaration of compliance” which was declared by Sir Mathias, and “memorandum of association”. These are documents of some technicality, and not things readily identified by someone with limited English.
    
73. Similarly, whilst ultimately not admitted into evidence, he readily identified a detailed affidavit which he swore in English in the civil proceedings he brought against the complainant in 2019.
    
74. In that regard, the accused has been embroiled in an ongoing battle with his brother since 2015 about various resolutions concerning registered shareholdings, which has seen him launch civil proceedings and face these criminal proceedings. There is no doubt that he knows what a resolution is.
    
75. There is also no doubt that the accused is a Chief, a leader, and a former Member of Parliament. He asserts that he and his brother worked together to build and manage the company. He made it clear that it was he who went to the IPA to make the complaint, that he did so after conducting searches at the IPA himself, and that whilst he might have been accompanied by two young relatives, they remained outside. At the same time he asks the Court to believe that he signed a form put before him by a lawyer at the IPA, whom he did not know personally, about his shareholding in the company, a matter about which he was deeply concerned, without reading it or understanding it. The accused is not a man who would blindly sign documents drafted by someone else. His evidence is implausible, and the allegations against Doa are a belated attempt to avoid the inevitable conclusion that it was the accused who forged P3.
    
76. The accused’s version of events is also inconsistent with the documentation itself. The accused’s letter, D1, is dated 26 April 2016. He says he delivered the letter to Doa and was asked to return the following day, yet he admits that he signed P3 on 10 May, which is almost two weeks later.
    
77. The totality of the circumstances, including the established facts, the accused’s longstanding position as director and shareholder, the reduction of 40% of his shareholding without his consent, the fact the accused was angry with his brother for reducing his shareholding, and that he is an intelligent and experienced man, a leader in his own right, together with his admission that he signed P3, and the fact that it was he who stood to gain, exclude any rational inference that the accused signed the document without knowing that it was false.
    
78. Finally, I am satisfied beyond reasonable doubt that the accused made P3 with intent that it may in any way be used or acted on as genuine, with intent that a person may, in the belief that it was genuine, be induced to do or refrain from doing any act. In particular, the accused intended that the Registrar of Companies, or at least an officer at the IPA, would rely on it as genuine and be induced to alter the company’s records, with the effect of restoring 50% of shares in the company to him. It is immaterial that the accused did not intend that a particular person should use or act on it and be induced to do so: 462(5) of the Criminal Code.
    
79. In the circumstances, the State has established the prescribed intent under s 460(2)(b) of the Criminal Code.
    
80. It is clear from the terms of s 460(2) that it is sufficient for the State to establish either of the intents set out in subsections (2)(a) and (b). For similar reasons, however, the State has also established the alternative intent. It was the accused’s intention that the Registrar of Companies, or an officer at the IPA, act to their prejudice, in performing their functions under the Companies Act, that is to act on the notice of change of shareholder (share transfer) form, which they would not have done if they had known it was false. That was prejudicial to the rights and responsibilities of those persons, quite apart from its impact on the complainant and other shareholders.
    
81. It follows that the State has established each of the elements of the offence.
    
82. The accused submits that he has a defence under s 23(2) of the Criminal Code.
    

Claim of Right: s 23(2) of the Criminal Code

83. Section 23(2) provides that:
    

“A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.”.

84. In order for s 23(2) to apply it is necessary that: a) the offence under consideration must be one relating to property; b) that the act done or omitted to be done must be done or omitted to be done with respect to property; and c) that it must be done or omitted to be done in the exercise of an honest claim of right without intention to defraud: R v Magalu [1974] 188 adopting Olsen v. The Grain Sorghum Marketing Board; Ex parte Olsen & Anor [1962] Qd.R. 580.
    
85. The offences of forgery and uttering a document in Part VI of the Criminal Code relating as they do to property as defined in s. 1 of the Code are offences relating to property within the meaning of s. 23(2) of the Code. As explained by Frost CJ in Magalu (emphasis mine):
    

“The first question is whether the offences of forging and uttering a document are offences relating to property. They are found within Pt. VI of the Criminal Code. A document falls within the definition of property contained in s. 1 of the Code as including every thing, animate or inanimate, capable of being the subject of ownership...

In relation to these offences I can see no reason why the expression should be restricted to offences involving the wrongful interference with the property of others. This view is supported by the use of the term “any property” which is found in the definition of the act to be excused. Although the conclusion in any particular case would depend on an examination of the relevant section of Pt. VI of the Code prescribing the offence, the second paragraph of s. 22 in my opinion is prima facie applicable to all offences prescribed under Pt. VI and relating to property rather than contracts.

It is sufficient for me in this case to say that in my opinion the offences of forging and uttering a document set out in Pt. VI and also relating as they do to property as defined in the Code are offences relating to property within the meaning of s. 22 of the Code. It follows also that the act of forging the cheque was an act done with respect to “any property”.

86. In that case the manager of the students union canteen forged the signature of the person authorised to sign cheques, who was away at the time. In convicting the accused Frost CJ found that it was irrelevant that the accused did no more than use the proceeds for the purposes of the canteen. The evidence established the elements of the offence, and excluded any claim of right. The accused knew that forging the cheques was wrong and had no honest belief that he was entitled to do so.
    
87. The principles governing an honest claim of right under s 23(2) of the Criminal Code have been considered in detail by the Supreme Court: Wartoto v The State (2019) SC1834; Kaya v State (2020) SC2026 at [64] et seq.
    
88. A claim of right need only be honest and not be reasonable: Wartoto; Kaya. But for obvious reasons, one that is unreasonable may be less likely to be believed as being genuinely or honestly held: Kaya at [68]. Where the defence is sufficiently raised, it is for the State to establish beyond reasonable doubt that the accused did not have the honest belief which he contends.
    
89. The defence does not apply in this case.
    
90. Firstly, the defence was not sufficiently raised at trial.
    
91. Whilst I appreciate that it may not be necessary in every case for the accused to give evidence claiming the right himself it may be difficult for an accused to sufficiently raise the claim otherwise. It will depend on the inferences available from the evidence. In this case, however, the accused did give evidence and it was not his case that he made the false notice of change of shareholder (share transfer) form honestly believing that he was entitled to do so but that he signed it without knowing that it was false, a claim I rejected.
    
92. To my mind that is the end of the matter. For the purposes of completeness, however, I make it clear that the State’s evidence has excluded beyond reasonable doubt any possibility that the accused forged P3 in an exercise of an honest claim of right without intention to defraud for the following reasons.
    
93. Section 23(2) requires both that an accused act in the exercise of an honest claim of right and without an intention to defraud.
    
94. An accused acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing: R v Pollard [1962] QWN 13. For obvious reasons the accused must honestly believe he is entitled to what he is doing with respect to the property the subject of the charge. See Magalu; R v Waine [2005] QCA 312. Furthermore, the belief must be one of legal entitlement, not simply a moral one: Kaya at [67].
    
95. In this case the property was the notice of change of shareholder (share transfer) form, and the act was the forging of it. It is the conduct of the accused with respect to that property, the document, that we are concerned with when considering the application of s 23(2).
    
96. Whatever the accused believed about his entitlement to the shares, the evidence excludes the possibility that he honestly believed that he was entitled to forge the notice of change of shareholder (share transfer) form, P3.
    
97. The accused made a false document intending that it be used by the IPA as genuine. That in itself is dishonest and a cheat: Welham v DPP [1962] Qd.R. 580, at pp. 588-589. The accused is an intelligent and experienced man. He knew what he was doing was wrong. He expressly said that such a thing was wrong in his own letter of complaint to the Registrar of Companies about the complainant’s conduct. Furthermore, P3 was not just false, it was false in several material respects and deliberately contrived to have the appearance of being made on behalf of the company, in an effort to ensure it appeared genuine and would avoid immediate detection. In the circumstances the evidence establishes beyond reasonable doubt that the accused did not act in the exercise of an honest claim of right in forging the notice of change of shareholder (share transfer) form and that in doing so he had no honest belief that he was entitled to do so. That is sufficient to exclude the defence.
    
98. An intention to defraud is an intention to deprive a person of property which is his or to which he might be entitled, or to put the property of that other person at risk, or to imperil some lawful right, interest, opportunity or advantage of another person; by using deceit, or fraudulent or dishonest means; knowing that he has no right to deprive that person of that property or to prejudice those rights or interests: Roland Tom v State (2019) SC1833 applying Scott v Metropolitan Police Commissioner [1974] UKHL 4; [1975] AC 819 and Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493.
    
99. In this case the evidence further establishes that the accused intended to defraud the Registrar of Companies or one of the officers at the IPA, by inducing them to do something in accordance with their responsibilities under the Companies Act which they would not have done but for the forgery, or the deceit. The accused also well knew that he was not entitled to do that, as is clear from his conduct, and the contents of his own letter, D1.
    
100. Per King CJ in R v Kastratovic (1985) 19 A Crim R 28:
     

“The essential notion of defrauding is dishonestly depriving some person of money or property, or depriving him of, or prejudicially affecting him in relation to, some lawful right, interest, opportunity or advantage which he possesses. As Lord Radcliffe pointed out in Welham v. Director of Public Prosecutions ([1961] AC 103, at p. 123), 'although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning'. The detriment suffered by the person defrauded is usually economic but is not necessarily so. To defraud must involve something more than the mere inducing of a course of action by dishonest means: Welham v. Director of Public Prosecutions ([1961] AC 103), per Lord Radcliffe at p. 127. In offences constituted by obtaining money or property with intent to defraud, that something more may be found in the mere parting by the victim of the fraud with money or property which he is entitled to retain and which he would not have parted with but for the use of the dishonest means: Balcombe v. De Simoni ([1972] HCA 9; (1972) 126 CLR 576). In other cases, the defrauding may consist of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done. In all cases, the element of intent to defraud connotes the intention to produce a consequence which is in some sense detrimental to a lawful right, interest, opportunity or advantage of the person to be defrauded, and is an intention distinct from and additional to the intention to use the forbidden means” (62 - 63) (emphasis added).

101. In conclusion, the claim was not sufficiently raised, and is excluded beyond reasonable doubt on the evidence.
102. Accordingly, it is irrelevant to the criminal responsibility of the accused, although it will be relevant on sentence, that he may not have intended to deprive the complainant and other shareholders of what he believed he was entitled to or would have obtained if he had pursued the matter in the proper way, for instance by seeking recourse through legal proceedings: Magalu. See also Attorney General’s Reference (No 1 of 2000) [2002] EWCA Crim 1768; [2003] 1 WLR 395; and R v Gatzka [2004] VSCA 121.
     

S 462(3)(b)(i) of the Criminal Code

103. There is one final issue and that is whether P3 was a thing which “purports to be, or is intended by the offender to be understood to be or to be used as a transfer or assignment of.. a share in any corporation, company or society, whether domestic or foreign” for the purposes of s 462(3)(b)(i) of the Criminal Code.
     
104. In the normal course a share transfer would be the underlying sale or transfer agreement itself. The IPA would then be notified of the transfer by the registration or lodgement of the notice of change of shareholder (share transfer) form. I am satisfied beyond reasonable doubt, however, that P3 was intended by the accused to be “understood to be or to be used as a transfer or assignment of” shares in Mendikwae Ltd. That is why he made it.
     
105. In conclusion, on Count 2, I find the accused guilty of forging the notice of change of shareholder (share transfer) form dated 10 May 2016, contrary to s 462(1)(3)(b)(i) of the Criminal Code.
     

COUNT 1, EXHIBIT P11, MINUTES OF BOARD OF DIRECTORS MEETING OF 10 MAY 2016

106. It is not in dispute and I am satisfied beyond reasonable doubt that the signature of the complainant, Sir Mathias Merimba, on P11, the minutes of the purported board of director’s meeting, is false. As above, there was no meeting on that or any other day at which the complainant and the accused together with Aleesha or Joe Louis attended, at which it was resolved that all shares in the company would be transferred from the existing shareholders to the complainant and the accused, 50 shares each. The complainant did not sign P11.
     
107. The accused admits that he signed P 11 as himself.
108. I am satisfied beyond reasonable doubt that the accused was aware that the minutes were false when he signed them. I reject the accused’s evidence that Russell Doa drafted the minutes and that he simply signed the minutes without reading them. For the reasons stated above his evidence is implausible.
     
109. It is also clear to me that the person who drafted P11 is the same person who drafted P3. They both contain a distinctive spelling error, such that, ordinary shares in both documents is spelt as “oridinary shares”, again enforcing my view that it was not Doa who drafted either P3 or P11. It is a spelling mistake a lawyer at the IPA is unlikely to make.
     
110. In addition, the size and font of the text used in P11 is the same as that in the accused’s letter of 26 April 2016, D1. By contrast, the font in those documents is different to that of the font in the IPA’s letter of 9 February 2017, Exhibit P6, and the board minutes of 6 January 2015 and 20 October 2016 drawn up by Towa.
     
111. Furthermore, the accused admitted in cross-examination that he drew up the board minutes, that the minutes were false because no meeting took place on that day, and that he “took steps to make it 50:50”, although he subsequently resiled from that evidence in re-examination. The reference to 50: 50 is consistent with the terms of the minutes themselves.
     
112. I am also satisfied beyond reasonable doubt that it was the accused who signed his brother’s signature on the minutes and no one else, and that he knew at the time that he was not authorised to do so. In addition to the circumstances outlined above at [77], as demonstrated by his letter D1, the accused was aware that the minutes signed by the directors might be required to support changes registered with the IPA. In summary, the totality of the circumstances, excludes any rational possibility that anyone else forged the complainant’s signature.
     
113. Here I observe that this is a very different case on its facts from that of Kane (supra). In that case the Supreme Court upheld an appeal against conviction in circumstances where the allegedly forged documents were not in evidence and could not be found. It is not the case that forensic evidence is required in every case to establish that an allegedly forged signature is not that of the purported maker. For the reasons outlined above, there is no doubt in this case that there was never any meeting of 10 May 2016, nor that the complainant did not sign the minutes, and the evidence excludes any rational inference that it was anyone other than the accused who signed the minutes in the name of the complainant.
     
114. The evidence also establishes beyond reasonable doubt that the accused made the false writing with the intention that it may be used or acted on as genuine, with the intent that a person may, in the belief that it is genuine, be induced to do or refrain from doing any act, in particular that he intended that the Registrar of Companies, or at least an officer at the IPA, would be induced to change the reported shareholdings in the company. The minutes were clearly intended to support the registration of the share transfer form at the IPA.
     
115. For the reasons outlined above, I reject the accused’s submission that he has a defence under s 23(2). He raised no such claim, expressly disavowing that he made or forged the complainant’s signature. Furthermore, the evidence has excluded any possibility that he honestly believed he was entitled to forge the complainant’s signature on the minutes, regardless of whether he believed he was entitled to have his shares returned to him.
     
116. The State has failed to establish, however, that the minutes were intended by the offender to be used as a transfer of shares in Mendikwae Ltd. On their face they are minutes of a meeting, and resolve for an accountant or lawyer to prepare the necessary documentation to “effect” the changes. They were intended to support the share transfer, not to be understood as the transfer itself. Thus whilst the State has established forgery under s 462(1), it has failed to establish (3)(b) attracting the higher penalty.
     
117. On Count 1, the accused is found guilty of forging the signature of Sir Mathias Merimba on P11, contrary to s 462(1) of the Criminal Code.
     

COUNT 3: UTTERING

118. Section 463(2) creates the offence of uttering:
     

(2) A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.

119. To establish the offence of uttering the State must prove beyond reasonable doubt that the accused:
     
     1. Knowingly; and
     2. Fraudulently;
     100. Uttered;
     4. A false document.
        
120. Pursuant to s 1 of the Criminal Code, “knowingly”, “when used in connection with an expression denoting uttering, implies a knowledge of the character of the thing uttered or used”. Or in other words the accused must know that the document was false when they uttered it.
     
121. Section 463(1) provides that:
     

(1) In this section, “fraudulently” means with an intention–

(a) that the thing in question shall be used or acted on as genuine, whether in Papua New Guinea or elsewhere, to the prejudice of some person, whether a particular person or not; or

(b) that some person, whether a particular person or not, will, in the belief that the thing in question is genuine, be induced to do or refrain from doing some act, whether in Papua New Guinea or elsewhere.

122. Section 1 provides that to “utter” means

(a) use or deal with; or

(b) attempt to use or deal with; or

(c) attempt to induce any person to use, deal with, or act on,

the thing in question.

123. Section 145 of the Criminal Code further says that “utter” includes:
     

(a) use, deal with or act on; and

(b) attempt to use, deal with, or act on; and

(c) attempt to induce any person to use, deal with, or act on,

the thing in question as if it were genuine.

124. For the reasons outlined above, I am satisfied beyond reasonable doubt that the documents, P3 and P11, were false, and that the accused knew that the documents were false.
     
125. It is the State’s allegation that the accused uttered the documents by lodging them with the IPA. The State intended to show that the minutes were lodged in support of the share transfer form. As above, I have no doubt that was the intention of the accused at the time he made the documents, both of which are dated 10 May 2016.
     
126. Doa did give evidence that Form 13 is usually accompanied by minutes of meeting but I accept his evidence that the accused did not give either to him.
127. I am, however, satisfied beyond reasonable doubt that the accused uttered P3 by lodging it with the IPA. The accused admits providing a K100 registration fee, albeit that I reject his evidence he gave it to Doa. An official stamp together with a handwritten endorsement shows that the document was submitted to the office of the Registrar on 21 May 2016, together with a registration fee of K100. I accept on the evidence of Doa that the stamp would have been placed by an officer upon receipt of the document at the counter, and that the document would have been scanned on to the system at the time. A barcode on the document confirms this.
     
128. For the purposes of s 463(2), s 463 (1) exhaustively defines the term “fraudulently” to mean that the thing in question shall be used or acted on as genuine, to the prejudice of some person, whether a particular person or not; or that some person, whether a particular person or not, will, in the belief that the thing in question is genuine, be induced to do or refrain from doing some act.
     
129. I am satisfied beyond reasonable doubt that the accused uttered P3 fraudulently, that is with the intention that a person, the Registrar of Companies, or at least some officer at the IPA, would be induced to do some act, namely alter the records as to shareholdings in the company. It was he who drafted and signed P3, and he who stood to benefit.
     
130. For the reasons stated above, the accused’s submission that he acted in an honest claim of right fails. It was not sufficiently raised at trial. The accused maintained that he did not utter the false notice of change of shareholder (share transfer) form. Furthermore, for the reasons outlined above, the State’s evidence has excluded the possibility that the accused acted in an honest belief that he was entitled to utter the false share transfer form.
     
131. The situation with P11 is less straightforward. The State failed to produce evidence to establish that the minutes had been retrieved from the IPA’s records. The minutes were not attached to P3 produced from the IPA’s records. Doa was unable to confirm whether the minutes had been lodged with the IPA when they were shown to him as they do not contain a Registry stamp.
     
132. Sgt Sewode, through whom the minutes were produced, gave evidence that he obtained P11 from the company and the complainant, not from the IPA. Neither Sir Mathias nor Gigmai Towa were asked from where they obtained P11. Sir Mathias gave evidence that he became aware of the redistribution when the matter was published in the paper but the announcement was not produced, and no evidence was given as to who published the matter in the paper and whether or not it made any reference to the minutes.
133. Thus, whilst I am satisfied beyond reasonable doubt that the accused prepared and signed the minutes, and whilst it is highly likely that the accused did utter P11 by lodging it in support of P3, the State has failed to establish this beyond reasonable doubt. This does not alter my finding under Count 1, however, that at the time he forged the document he intended that it be relied on to induce an officer at the IPA to rely on it as genuine, even if he did not ultimately lodge it with the IPA.
     
134. The effect of the above is that the State has failed to establish that the accused uttered one of the documents referred to in Count 3.
     
135. No objection was taken to Count 3 on the basis that it charged the uttering of the share transfer notice and minutes in one count, and in my view the charge is not bad for duplicity: see the discussion in The State v Solis Ima (2020) N8676 at [72] to [78]. There was no prejudice to the accused in his defence. There could have been no confusion as to the case against him, which was that the minutes were attached in support of the share transfer form and uttered at the same time. The failure to establish that the accused uttered P11 does not mean that the State has failed to establish Count 3.
     
136. The accused is found guilty of uttering contrary to s 463(2) of the Criminal Code.
     

VERDICT

137. The accused is found guilty of:
     
     1. one count of forgery, contrary to s 462(1)(3)(b)(i) of the Criminal Code;
     2. one count of forgery, contrary to s 462(1) of the Criminal Code; and
     100. one count of uttering, contrary to s 463(2) of the Criminal Code.
          

Verdicts accordingly.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Haiara Lawyers: Lawyer for the Accused