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Tongayu v State [2023] PGSC 39; SC2380 (26 April 2023)

SC2380

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 24 OF 2021

ALEX TONGAYU
Appellant

V

THE STATE
Respondent

Waigani: Bona J, Kaumi J, Narokobi J
2022: 25^th October
2023: 26^th April

APPEAL – Whether conviction on two counts of forgery under s 462(1) of the Criminal Code was safe.

FORGERY – Electronic Forgery – Whether it falls within the class of forgery within s 462(1) of the Criminal Code – Whether element of production was proven from the admissible evidence.

EVIDENCE – Whether trial judge correctly considered the evidence and applied it.

CIRCUMSTANTIAL EVIDENCE – Whether trial judge excluded all reasonable inferences, other than the guilt of the appellant.

The Appellant was found guilty by the National Court on two counts of forgery contrary to s 462(1) of the Criminal Code that he forged the instruments of the Minister appointing him to the position of Acting Registrar of Companies and Acting Chairman of the Securities Commission of Papua New Guinea. He was sentenced to three years imprisonment. He appealed both conviction, and sentence, but only pursued the appeal against conviction at the hearing of the appeal.

Held

(1) Each of the elements of the offence of forgery under s 462(1) of the Criminal Code were considered to the requisite standard, that is proof beyond reasonable doubt to determine the guilt of the appellant. That is, that the accused:

(a) made a false document or writing or seal;

(b) knowing it to be false and with intent that it may in any way be sued or acted on as genuine;

(c) to the prejudice of a person OR with the intention that a person, in the belief that it is genuine, be induced or refrain from doing any act.

(2) “Marking” although computer-generated, but imposed on to a physical document, such as a paper is “a document” within the meaning of the word as it is defined in the Criminal Code (s 459(1)(b)(ii)) for purposes of s 462(1) of the Criminal Code.

(3) The absence of an expert witness relating to signatures does not mean the trial judge cannot assess handwriting evidence, but the court must warn itself of the danger of not relying on expert testimony before reaching its findings.

(4) An inference pointing to the innocence of an accused, must be a reasonable inference and not a mere conjecture.

(5) There was no error of the trial judge’s conviction of the appellant on two counts of forgery contrary to s 462(1) of the Criminal Code on the basis that the guilt of the appellant was not just a rational inference but the only rational inference of the guilt of the appellant in all the circumstances.

(6) Appeal was therefore dismissed.

Cases Cited:

John Beng v The State [1977] PNGLR 115
Paulus Pawa v. The State [1981] PNGLR 498
The State v Baine [1990] PNGLR 1
Yugari v State (2018) SC1691

Statutes Cited:

Criminal Code

Counsel:

Appellant in Person
C Langtry, for the Respondent

25^th April, 2023

1. BY THE COURT: The Appellant was found guilty by the National Court of two counts of forgery contrary to s 462(1) of the Criminal Code that he forged the instruments of the Minister appointing him to the position of Acting Registrar of Companies and Acting Chairman of the Securities Commission of Papua New Guinea. He was sentenced to three years imprisonment. He appealed both conviction, and sentence, but only pursued the appeal against conviction at the hearing of the appeal.
   

Background

2. The State brought an indictment containing two counts of forgery against the appellant and established that the appellant was guilty of both counts.
   
3. The two counts read:
   

Count 1: forged a document purporting to be the Revocation of Acting Appointment and Appointment of Registrar of Companies pursuant to Section 394(2)(1)(b) of the Companies Act 1997.

Count 2: forged a document purporting to be the Revocation of Acting Appointment and Appointment of the Chairman of the Securities Commission of Papua New Guinea pursuant to Section 4(4) of the Securities Act 1997 (repealed).

4. It was not in contention at trial that the appellant’s appointment as Chairman of the Securities Commission was revoked in National Gazette G788 of 20 October 2016 by the complainant, Honourable Richard Maru, then Minister for Trade, Commerce and Industry. The appellants appointment as the Registrar of Companies was also revoked by the complainant in the National Gazette.
   
5. What was in contention, which the trial judge found to have been proved on the requisite standards was that between 1 May 2017 and 7 June 2017 the appellant forged, or caused the forgery of two documents which restored him to his former positions. The documents were appointment instruments purporting to be:
   
   • (a) The Revocation of Acting Appointment and Appointment of Registrar of Companies pursuant to Section 394(2)(1)(b) of the Companies Act 1997; and
     
   • (b) The Revocation of Acting Appointment and Appointment of the Chairman of the Securities Commission of Papua New Guinea pursuant to Section 4(4) of the Securities Act 1997 (repealed).
     
6. The State proved at trial that the two documents were forged by adding to each document a marking purported to be the signature of the complainant. The appellant than gave both documents to officers from the Investment Promotion Authority who took them to the Government Printing Office for publication. As a result, National Gazette number G441 was published which gave legal effect to the appellant’s appointment as Registrar of Companies and Chairman of the Securities Commission of Papua New Guinea.
   
7. The State proved beyond reasonable that when the accused added or caused the addition of the marking purporting to be the signature of the complainant to each of the instruments, he contravened s 462(1) of the Criminal Code.
   

Appeal Grounds

8. The following grounds of appeal have been raised.
   

The conviction is unsafe and unsatisfactory in that-

1. The trial judged erred in law and fact when it satisfied itself that electronic forgery had occurred when there is no evidence of what electronic forgery is and how it is done in this case and using which electronic device especially when the only expert witness was a handwriting expert, therefore the element of production was not proven beyond the reasonable standard of reasonable doubt.
   
2. The trial judge erred in law and fact when deciding whether to accept the appellant’s evidence when it said at paragraph 246 and 247 of its judgment respectively, that the critical discrepancy in the court’s view is:
   
   1. That the appellant had distanced himself from the instruments of appointment altogether, that he effectively said Mr Timea acted on his own however this was never stated by the appellant in the memo given by him to the IPA in support of Mark Timea’s response to the charge served on him by the IPA or in any of the appellant’s evidence.
      
   2. In addition, the court erred to say that the appellant knew that the complainant was not angry with him in June 2017 when there was no evidence of this being communicated to the appellant at the time.
      
3. The trial judge erred in law when dealing with circumstantial evidence particularly when the court agreed that other reasonable inferences existed other than the guilt of the accused as stated in paragraph 255 and 258 of its decision, which made the conviction unsafe.
   
4. The trial judge erred in law and fact when accepting the evidence of the handwriting expert when the State did not provide evidence of the original or genuine signatories of the complainant to compare with the alleged forged signatories on Exhibits “P1” and “P2” and “D15” through State witness Richard Maru or by providing them to the handwriting expert for them to establish the differences in signing if any.
   
5. The trial judge erred in law and fact when she did not consider exhibits “D15” which State witnesses, Mr Johnny Bogombari admitted in evidence that exhibit “D15” was given to him or received from Mr Chris Nigis, the First Secretary of Hon. Richard Maru and looked different from the actual forged exhibits “P1” and “P2” therefore how could the court be certain that the electronic forgery was produced by the appellant.
   
6. The trial judge erred in law and fact I sentencing the appellant to spend three (3) years in prison on the sole basis that the reputation of the Securities Commission and the Investment Promotion Authority’s reputation had been tarnished especially when there was no evidence of this provided by the State through the Probation Reports or a Victim Impact Statement.
   
9. The appellant abandoned grounds two and six of the appeal. The sixth ground related to appeal against sentence. We therefore do not consider grounds two and six of the appeal.
   

Issue

10. From the appeal grounds, the main contention is whether the conviction should be set aside as it was unsafe or unsatisfactory pursuant to s 23(1)(a) of the Supreme Court Act. Was there a reasonable doubt in all the circumstances of the case of the safeness or satisfactoriness of the conviction? (John Beng v The State [1977] PNGLR 115). This question will be determined by considering the following issues:
    
    • Whether this was a case of electronic forgery that fell within the class of forgery under s 462(1) of the Criminal Code?
    • Whether the element of production in the offence of forgery under s 462(1) of the Criminal Code was proven beyond reasonable doubt from the admissible evidence?
    • Whether trial judge correctly excluded all reasonable inferences, other than the guilt of the appellant?
      
11. Considering these issues will enable us to determine the appeal grounds to arrive at the conclusion as to whether the conviction reached by the trial judge was safe or not.
    

Decision of the National Court

12. We feel that it is appropriate that we spend some time discussing the judgment on conviction. We do so for the reason that the trial judge went to great lengths to consider all the evidence from both the State and from the appellant. It is also because the appellant made the submission that the trial judge did not state the elements of the offence and considered the evidence in the light of the elements of the offence (Yugari v State (2018) SC1691). We highlight the main aspects of the trial judge’s decision.
    
13. The State called 11 witnesses and tendered several documents as exhibits. The appellant relied on his own sworn evidence, calling no other witnesses. He also tendered several documents as exhibits. Both sides tendered a number of documents including the documents that were alleged to have been forged. There was no direct evidence of the appellant forging the documents. This was therefore a case based on circumstantial evidence.
    
14. The State’s case was that the appellant electronically affixed the complainant’s electronic copy of his signature on two instruments appointing himself to the position of Registrar of Companies and Chairman of the Securities Commission of Papua New Guinea. The complainant, Hon Richard Maru, who at the time was the Minister for Trade, Commerce and Industry, did not consent to this. He did not sign it. It was therefore done fraudulently. The appellant was therefore charged with two counts of fraud under s 462(1) of the Criminal Code.
    
15. The appellant ran his defence along the lines that the complainant had set him up, as there was an acrimonious relationship between the complainant and the appellant, over certain matters which the complainant as the Minister wanted the appellant to do.
    
16. The trial judge held that to establish the offence of forgery pursuant to s 462(1) of the Criminal Code, the State must prove beyond reasonable doubt that the accused:
    
    • (a) made a false document or writing or seal;
    • (b) knowing it to be false and with intent that it may in any way be sued or acted on as genuine;
    • (c) to the prejudice of a person OR with the intention that a person, in the belief that it is genuine, be induced or refrain from doing any act.
      
17. The documents the State says were forged were two exhibits tendered and identified as P1 and P2.
    
18. Exhibit P1: Copy of Revocation of Acting Appointment and Appointment of Registrar of Companies dated 25 May 2017 appears as follows:
    

19. Exhibit P2: Copy of Revocation of Acting Appointment and Appointment of the Chairman of the Securities Commission of Papua New Guinea dated 25 May 2017 appears as follows:
    

20. The trial judge found that the “documents” in this case include both the writing and the copy of the Minister’s signature, that is exhibits P1 and P2 for purposes of s 462(1) of the Criminal Code:
    

175. The “documents” in this case include both the writing on the body of the instruments purporting to appoint the accused to the respective positions and the purported signatures of Minister Maru. As above, “document” includes the paper “that is marked with any letters or marks denoting words, or with any other signs capable of conveying a definite meaning to persons conversant with them”: s 459(1)(b)(ii) of the Criminal Code. The text of Exhibits P1 and P2 are clearly computer generated.

21. The fact that they were computer generated did not alter the fact that they were “documents” as the term is understood for the purpose of the offence of forgery.
    
22. Exhibits P1 and P2 were obtained from the Government Printing Office (GPO) by the investigating officer, Detective First Constable Waira.
    
23. The trial judge then found from the evidence of the Government Printer, Christine Lenturut, that Exhibits P1 and P2 are copies of the documents she held on file as the documents actually submitted to the GPO on 7 June 2017. Critically, the documents she held on file are in the same form as Exhibits P1 and P2 and do not contain original signatures. According to the trial judge’s findings on the evidence of Christine Lenturut, no originals of Exhibits P1 and P2 were lodged.
    
24. The question of how the forgery occurred was important. There was no evidence at trial to explain how the documents were created and indeed how the electronic signatures were affixed to the appointing instruments, that is exhibits P1 and P2. The trial judge warned herself about the lack of expert evidence, she said:
    

183. Although expert evidence is not essential for a tribunal of fact to come to a conclusion on a comparison of disputed handwriting, a judge sitting alone in a criminal trial must warn himself of the dangers involved in proceeding when unassisted by expert testimony: The State v Baine [1990] PNGLR 1 applying O’Sullivan v The Queen (1969) 53 Cr App R 274 and R v Hobart Magalu [1974] PNGLR 188.

25. Taking all these considerations into account, the trial judge then concluded:
    

185. Having done so, it is clear to me on the face of the documents that the signatures in P1 and P2 are replicas of each other. I don’t need a microscope or a ruler to see that. If the two signatures are placed over one another they line up exactly. Not only are the signatures identical in shape and form but if one compares where the signatures line up against the signature line, and the typed text of the name and title of the Minister above which they sit in each document, they too match exactly. There are no variations between the signatures either in the way they are written or where they sit above the signature line in each document. I accept C/S Rayabrum’s evidence, and it follows as a matter of common sense, that one would expect there to be some variation between the signatures if they were handwritten by the same person. The signatures on P1 and P2 are identical.

26. This aspect of Chief Sergeant Rayabrum’s evidence was significant to the trial judge to establish how the documents were produced:
    

His evidence explained the conclusion that he expressed in his statement that the signatures on P1 and P2 displayed: “all the characteristics of scanning and transferring or electronic transfer of signature from one document to another and also indicate strong evidence of being replicas”.

27. The question of whether the documents were false was considered carefully by the trial judge from all the evidence of the State. Instruments of appointment are prepared by the Office of the First Legislative Council. Mr Bogambari, the First Legislative Council gave evidence that the instruments, that is exhibits P1 and P2 were not from his office.
    
28. The trial judge made the following observation of the complainant’s evidence:
    

203. Mr Maru impressed me as a witness of truth. He gave his evidence in a direct manner without hesitation. I recall his response to the suggestion that he had framed the accused for forging instruments P1 and P2. Whilst demeanour is not the only consideration, on my assessment his reaction was one of genuine surprise and affront. The proposition was put to him early during cross-examination and he did not attempt to resile from his statements regarding the accused or otherwise mollify his evidence thereafter.

29. The trial judge observed the demeanor of the complainant during evidence in chief, cross-examination and re-examination before making this observation.
    
30. Ultimately the question of whether it was falsely made was determined through circumstantial evidence. The trial judge found the hypothesis of the appellant that it was in fact the complainant that produced the documents was excluded by the State’s evidence:
    

231. The State’s evidence has also excluded any rational possibility that Mr Maru executed original versions of the instruments himself with a view to framing the accused, then arranged for his staff to call the accused to collect the instruments, then went to the GPO and retrieved the original documents himself, or instructed his staff or associates to do so, and replaced them with Exhibits P1 and P2 containing scanned signatures, at some point, in a deceitful and complicated scheme, involving his own staff and persons at other offices, and maintained their complicity over several years including bringing them to court to give false evidence. It is implausible.

31. On the question of whether the appellant made the false documents the trial judge considered the fact that the State did not search the appellant’s computers at home or in the office to prove that he created exhibits P1 and P2. Despite that finding, other critical evidence pointed to the involvement of the appellant.
    
32. On 7 June 2018, Mark Timea, the IPA Scanning Officer, received from the appellant a sealed envelope containing the instruments (exhibits P1 and P2). With him at the time was James Joshua, Senior Surveillance Officer, and Andy Ambulu, Lawyer. Mr Timea was told by the appellant that the envelope contained instruments appointing him Chairman of the Securities Commission and Registrar of Companies. Mr Timea was instructed to take the documents to the GPO for publication. In the envelope was K500 cash to pay for the gazettal. Mr Timea was told that the publication was urgent. All this happened in the morning. There is no real dispute that this took place.
    
33. Exhibit P1 and P2 were then submitted to Rogerlyn Tapaua, Senior Publishing Officer at the GPO. One of the officers told her that publication was urgent. Mr Joshua paid the K500 publication fees using his own card since the GPO did not accept cash.
    
34. The instruments that were lodged did not have original signatures in ink, but identical signatures inserted into the documents by electronic means. This is from the evidence of Christine Lenturut, Rogerlyn Tapaua and Chief Sergeant Rayabrum. The trial judge further found that the instruments of appointment were not made or authorised by Minister Maru. At that time in the June period of 2017, Mr Maru was campaigning in the 2017 National General Elections in his East Sepik home province. The evidence of the First Legislative Council, Mr Johnny Bogambari showed that the instruments were not prepared by the Office of Legislative Counsel in the usual process. Additionally, the Managing Director of the IPA, Mr Hoot confirmed that they were not asked to complete the process as is ordinarily done. In the trial judge’s words:
    

263...Arrangements were not made for the IPA to publish the documents in the normal course. Despite the prior revocations and the poor state of the relationship, including ongoing court proceedings, and complaints to police on both sides, the accused did not consult with Minister Maru prior to publishing the documents. Nor did the accused seek to have the instruments dealt with in the normal course through the Managing Director of the IPA. The accused did not seek reimbursement of the publication fees from the IPA.

35. The instruments that forged instruments were lodged were published in G441. Upon learning of this Mr Maru checked the office of the First Legislative Council for the appointing instruments. When he was advised by the office of First Legislative Council that there was none, he revoked the appellant’s appointment, lodged a complaint with the police and put out a notice in the paper refuting the purported appointment by him of the appellant. He also revoked the appointment of Mr Tongayu.
    
36. On the element of fraud that the appellant knew the documents to be false with the intent that it may be used as a genuine document, the court said:
    

267. I am satisfied beyond reasonable doubt that at the time the accused made the false instruments he knew that they were false. He knew that he was not authorised to make the instruments purporting to appoint him to the positions of Chairman of the Securities Commission and Registrar of Companies by the Minister. There is no other rational inference having regard to the accused’s intelligence and experience.

268. I am also satisfied beyond reasonable doubt that, for the reasons outlined below, at the time the accused made the false instruments he knew that the documents may be used or acted on as genuine. There was no other reason for making them.

37. Finally, on the element of the intention that the document would be acted upon as a genuine document, the trial judge concluded:
    

269. It is well established that intention at the time of any alleged offence is a question of fact to be determined by the trial judge. It may be proven by examining the accused’s conduct prior to, at the time and subsequent to the act constituting the offence: The State v Raphael Kuandande [1994] PNGLR 512; Ikalom v State (2019) SC1888.

270. It was the accused who gave the false documents to Mark Timea and instructed him to take them for publication. It was the accused who provided funds to pay for the publication. It was the accused who stood to benefit from the appointments.

270. I am satisfied beyond reasonable doubt that the accused intended that a person at the GPO, in the belief that the documents were genuine, would be induced to publish the false instruments in the National Gazette. There is no other rational inference.

38. The trial judge ended by stating that the State had negated beyond reasonable doubt any inference leading to the innocence of the appellant and the only rational inference was his guilt. He was therefore found guilty of two counts of forgery under s 462(1) of the Criminal Code.
    

Submissions

39. The appellant submitted that although the trial judge was obliged to set out and apply the elements of the offence, she did not do that.
    
40. The appellant also submitted that he was found guilty of electronic forgery and there is no definition of electronic forgery. He was found guilty of general forgery under s 462(1) of the Criminal Code.
    
41. The appellant took issue with the trial judge’s observation that she had doubts as to the source of the documents, that is P1 and P2, when she said:
    

How that was done precisely, I cannot say, but it does not change my findings that had happened and the documents have been made.

42. The appellants main contention was that the trial judge did not consider the entirety of the evidence to arrive at the conclusion that there was no rational inference of the innocence of the appellant. There was insufficient consideration given to exhibit D15 which suggested that the instruments of appointment were generated from the Minister’s office. This would lend support to the appellants explanation that the forged instruments actually were generated from the Ministers office. The conviction was therefore unsafe.
    
43. The State on the other hand submitted that the trial judge considered the evidence in its entirety, including the fact that the appellant did not deny passing an envelope with the appointing instruments to his officer Mark Timea to take to the Government Printing Office for lodgment. Her Honour referred to relevant case authorities and excluded other potential inferences.
    
44. The State maintained that D15 is an exact copy of exhibit P1 and therefore it was not of any probative value. The State further submits that the trial judge correctly assessed the evidence and arrived at her conclusion. The trial judge made no error in convicting the appellant. The conviction was therefore safe.
    

Considerations

45. We consider all the issues together to determine if the appeal grounds have been made out bearing in mind that grounds two and six have been abandoned.
    
46. We do not agree with the appellant that the trial judge found that this was a case purely of electronic forgery. The trial judge began her assessment by determining whether exhibits P1 and P2, which were the subject of the forgery charge against the appellant, were “documents” within the meaning of s 459(1)(b)(ii) of the Criminal Code. She said that “documents” includes “...paper, parchment or other material, used for writing or printing...”:
    

...that is marked with any letters or marks denoting words, or with any other signs capable of conveying a definite meaning to persons conversant with them.

47. In our view this was not a offence committed entirely through electronic means to dishonestly achieve an objective. In this case the “marking” as the trial judge found was computer-generated, on to a physical document, a paper being produced, that was “marked.” In our considered view, it was clearly a document within the meaning of the word as it is defined in the Criminal Code (s 459(1)(b)(ii)) for purposes of s 462(1) of the Criminal Code). Electronically generating a marking on a physical document, is within the meaning of a document for the purposes of the said provision. It was therefore not necessary to consider the definition of electronic forgery under s 13 of the Cybercrime Code Act 2016.
    
48. At paragraph 153 of the elements of the offence of forgery pursuant to s 462(1) of the Criminal Code were identified. Her Honour’s identification of the elements of the offence were consistent with the Supreme Court’s decision in Yugari v State:
    
    1. Made a false document or writing or seal;
    2. Knowing it to be false, and with intent that it may in any way be used or acted on as genuine;
    100. To the prejudice of a person OR with the intention that a person may, in the belief that it is genuine, be induced to do or refrain from doing any act
         
49. As is apparent from our discussion of the National Court’s decision, her Honour considered the evidence from the State as it relates to each of these elements of the offence under s 462(1) of the Criminal Code to determine whether they were proved beyond reasonable doubt. In our view the trial judge has stated the elements of the offence and considered the evidence consistent with the Supreme Court’s decision in Yugari v The State.
    
50. This is a case which turns much on a careful assessment of the evidence as it was one proven on circumstantial evidence. The balance of the appeal grounds turns on the question of whether there was a rational inference other than the guilt of the appellant. There was no direct evidence to prove that the appellant committed the act of forgery, that is the element of production.
    
51. There was no issue about the law on circumstantial evidence. Her Honour relied on the case of Paulus Pawa v. The State [1981] PNGLR 498 to guide her analysis of the circumstantial evidence. This is discussed at paragraphs 156 to 160 of her judgement. We endorse her Honours statement of the law on circumstantial evidence as it applies to our jurisdiction.
    
52. On the question of how the forgery was done, the appellant says that there was no expert evidence led by the State to demonstrate how the forgery occurred. The evidence that the trial judge relied on was that of Chief Sergeant Rayabrum who expressed in his statement that the signatures on P1 and P2 displayed:
    

all the characteristics of scanning and transferring or electronic transfer of signature from one document to another and also includes strong evidence of being replicas.

53. What the evidence says is that the copy of the complainant’s signature was affixed electronically to both documents, that is the same copy was affixed so to speak on both instruments, that is P1 and P2 and indeed D15. The trial judge said, “I accept his evidence that the signatures have been placed on the documents by electronic means.”
    
54. The appellant takes issue with the fact that there was no expert witness to explain how the signatures can be placed by electronic means.
    
55. We consider that her Honour correctly addressed the appellant’s objection to accepting this evidence by warning herself of the dangers involved in proceedings unassisted by expert testimony: The State v Baine [1990] PNGLR 1. The trial judge accepted Chief Sergeant Rayabrum’s evidence that he measured the signatures and examined them under a microscope and that they indicated strong evidence of being replicas. Her Honour went on to compare the signatures in exhibits P1 and P2 and agreed with Chief Sergeant Raybrum’s analysis that if they were actual signatures, there would be variations. In this case there was none. The signatures lined up perfectly.
    
56. But even relying on this factor alone would have rendered the conviction unsafe. This was one piece of the totality of evidence led by the State to prove that the only reasonable inference was the guilt of the appellant. Paragraphs 236 to 266 of the trial judges written decision sets out her comprehensive assessment of the circumstantial evidence. We find no fault in this assessment.
    
57. We therefore find that her Honour correctly determined how the document was produced. The first ground of appeal is dismissed.
    
58. We would also dismiss ground four of the appeal on the basis that it was not necessary to introduce a specimen signature of the complainant to compare them with the signatures on exhibit P1 and P2. The State’s case was the electronic affixing of the same copy of the electronic copy of the complainant’s signatures. The circumstantial evidence showed that it could not have been anyone else apart from the appellant as he stood to benefit from this act.
    
59. An example of how her Honour considered the circumstantial evidence in their entirety which led her Honour to determine that the only rational inference open to her was the guilt of the appellant is the following:
    
    • It was highly unlikely that anyone in the position of Mr Maru would reappoint the accused to either position, in an acting capacity, or permanently as provided by the instruments due to the breakdown in the relationship between Mr Maru and the appellant.
    • Mr Maru was campaigning in Wewak at the relevant time, just a few weeks out from National Elections. He was not challenged about this in cross-examination and the court took judicial notice of the fact that National Elections were held between 24 June and 8 July 2017.
    • The appellant had access to the electronic signature of Mr Maru.
    • The appellant gave the purported appointing instruments to three of his former work colleagues and told them to take it to the GPO and have it gazette urgently and he personally gave K500 cash to pay for it.
    • The documents submitted to the GPO on 7 June 2017 contain replica signatures, inserted by electronic means, and not original signatures.
    • Mr Maru revoked the appointments on 19 July 2017, not long after they were made and after he returned to Port Moresby.
    • Accepted the evidence of Mr Maru, Johnny Bogambari, First Legislative Counsel, and Clarence Hoot, the Managing Director of IPA, that instruments from Mr Maru’s Ministerial office, and from Ministerial offices generally, were usually prepared by the Office of Legislative Counsel at the Minister’s request.
    • Further accepted the evidence of Mr Bogambari that his office did not prepare either P1 or P2 and had no record of them.
      
60. With respect, we find no error in her Honour’s analysis of the evidence to reach her conclusion. She did not rely on only one witness. She considered the totality of their evidence. Each of the witnesses came from different organisations, and it would be implausible to expect them to be involved in a grand conspiracy to set-up the appellant. We therefore dismiss ground three of the appeal.
    
61. The appellant has made much of exhibit D15. Exhibit D15 is also an instrument of appointment for the position of Registrar of Companies, similar to exhibit P1. During the cross-examination of the State witness Johnny Bogambri, the appellant tendered exhibit D15. They sought to prove that since this exhibit came from the office of the Minister, and that it was a different document to P1, the effect of it would be that exhibits P1 and P2 were also generated by the complainant.
    
62. We have read page 94 and 95 of the appeal books which provides the transcript of the exchange between Mr Bogambari and Mr Sasingian, counsel for the appellant at the trial which led to Exhibit D15 being tendered through Mr Bogambari through his cross-examination. It was not disputed that it came from the complainant’s First Secretary Chris Ningis. He had written to the First Legislative Council Mr Johnny Bogambari, enclosing D15 to enquire whether the First Legislative Council had seen this document as he is the one who is required to draft it. Mr Bogambari said that he did not have it in his possession.
    
63. The trial judge then said this about exhibit D15:
    

213. Furthermore, I don’t agree with the defence submission that Exhibit D15 is a different document from Exhibit P1 and therefore must be a computer generated document and not merely a further copy of P1. Whilst I warn myself that I am unassisted by expert opinion, it is clear to me that whilst D15 is darker than P1, it is simply that, a darker copy overall. In particular, everywhere that is bolded on P1 also appears bolded on D15, it is just that the entirety of D15 is darker. It is a dark photocopy. This is also evident from the fact that the text appears at an angle and a mark appearing on the right-hand side of the document is consistent with the document being a photocopy of Exhibit P1.

64. The trial judge was best placed to assess this evidence and draw her conclusion.
    
65. It is safe to say that D15 was in fact a copy of P1 for the complainant to establish where it originated from. The weight of the circumstantial evidence goes to show that the inference the appellant seeks to draw from this is not a reasonable inference but is a “mere conjecture.” It was safe for the trial judge to assess this document and conclude that it was a mere photocopy of exhibit P1. We therefore dismiss ground five of the appeal.
    
66. Finally, we note that it was a typographical error that the trial judge referred to s 406(1) of the Criminal Code in the conclusion of her decision which the appellant took issue with. The whole case from the indictment to her Hounour’s decision was on forgery under s 462(1) of the Criminal Code. There was no substantial miscarriage of justice from this oversight.
    

Conclusion

67. We conclude by stating that in our view, we see no error in the conviction and therefore reach the view that the conviction was safe and the appeal should be dismissed.
    

Orders

68. On the basis of the foregoing, we would make the following orders:
    
    1. Appeal is dismissed and the conviction is affirmed.
       

Judgement and Orders accordingly

Public Prosecutor: Lawyers for the Respondent