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Director of Public Prosecutions v Yam [1991] SBCA 2; CA-CRAC 004 of 1991 (13 September 1991)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Criminal Appeal Case No. 4 of 1991

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

AND:

AUSTIN YAM
Respondent

Connolly P
Savage JA
Goldsbrough JA

Delivered the 13^th day of September 1991.

JUDGMENT OF THE COURT

This is an appeal against that part of the decision of M.W. Lodge, Commissioner given on 13 February 1991 in which it was ordered that two criminal charges against the appellant herein, should be remitted to the Magistrates' Court for hearing.

A brief background to the appeal is necessary. The appeal appeared before the Central Magistrates' Court on 22 June 1990 charged with five offences under various provisions of the Penal Code Cap 5. In an undated judgment, which appears to have been delivered on 26 June 1990 all five of those charges were dismissed, under the provisions of section 196 of the Criminal Procedure Code Cap 4, the court having formed the view that no case been made out against the appellant sufficient to require to make a defence. He was thereafter acquitted.

Pursuant to section 282 of the Criminal Procedure Cap 4 the Director of Public Prosecutions appealed to the High Court against that appeal of 26 June 1990. His appeal, by way of petition dated 9 July 1990 was heard by the High Court (Mr M W Lodge, Commissioner, presiding) on 7th February 1991 judgment in that appeal was delivered on 13th February 1991. The effect of that judgement was to confirm the acquittal in relation to three of the original five criminal charges to the Magistrates' Court for trial.

This appeal, brought in accordance with section 21(1) Court of Appellant Act 1978 by the appellant, seeks to argue against that part of the learned Commissioner’s decision to remit two charges to the Magistrates' Court. As there is no further question in relation to, indeed no right of appeal against, the acquittal in respect of the other three charges they shall not be referred to again in this judgment.

The two charges the subject of the appeal are:-

"1. Statement of Offence

Forgery of a document with intent to deceive contrary to section 330(3) of the Penal Code.

Particulars of Offence

That AUSTIN YAM of Yam and Company, Mendana Avenue, P O Box 730 at Honiara in the Guadalcanal Province at /between 1st March 1989 and 28 August 1989, with intent to deceive forged a document, to wit a letter to the Manager of Thompson Turueke Holdings Limited purported to be written on 15 February 1989 which was used in evidence in the High Court on 8 August 1989.

2. Statement of Offence

Uttering, contrary to section 336(1) of the Penal Code.

Particulars of Offence

AUSTIN YAM, between 1 and 30 March, 1989 at Honiara who knowingly and with intent to deceive uttered a false document, to wit a letter dated 11 February 1988."

The appellant was represented by Mr Fong of counsel. The Director of Public Prosecutions appeared in person.

The facts out of which these two charges arise are these. The appellant was the letting agent for a company known as Franwing Limited. Franwing Limited was the landlord of premises occupied by Buki Buki Plantations (which was effectively the same as, or in the control of, TT Holdings Limited, that itself being controlled by one Thompson Turueke). A Mr Robert Goh was appointed receiver when Buki Buki Plantations went into receivership.

In that capacity, Mr Goh, in March 1989, became aware of two letters written by the appellant as letting agent for Franwing Limited which were dated 11 February 1988 and 15 February 1988.

No doubt concerned not to have seen these letters before March 1989 in the files of the company in receivership (to whom they were addressed) he caused certain enquiries to be made which lead him to the conclusion that the documents of which he was now aware did not come into existence until shortly before he became aware of them. His suspicions was further aroused as he noted that the letters appeared on stationery which he believed the appellant had not begun to use until some months after February 1988, the date on the letters.

The relevant part of the judgment appealed against appears at page 21 of the record for appeal purposes, lines 31, 32 and 47-48:

"There was clearly prima facie evidence to show that the accused forged the letter dated the 15th February and that he did so with intent to deceive".

and -

"There was prima facie evidence that the accused uttered on letter dated 11th February 1988 and that the letter was a forgery."

Unfortunately the learned Commissioner in his judgment does not go on to identify quite what that prima facie evidence was and this court is therefore obliged to look to the record of proceedings in the Magistrates' Court for that evidence.

Six witnesses gave evidence at the original trial. The evidence of Robert Goh is capable of supporting a finding that the two letters of 11 February 1988 and 15 February 1988 were signed by the appellant.

The remainder of his evidence comprises his reasons for suspicion and the enquiries he made into the circumstances, together with his assertion that the originals of these letters were not contained in the company files he received on his appointment as receiver.

The evidence of an employee Mary Maekeni comprised almost entirely inadmissible material and cannot therefore be of any assistance in the case. One Nelson Nimelea gave evidence that his printing firm produced a new style letterhead, on which the allegedly forged documents appeared, only in August of 1988 and not before. The evidence of Michael Kigo and Phylestus Leong adds little if anything to these two allegations.

Importantly however, and as part of the prosecution case, Thompson Turueke gave evidence that he thought he received both of these letters "around February 1988", which evidence he repeated in cross examination. This evidence is of crucial importance as it clearly tends to suggests that the prosecution case, that these documents did not come into existence until some time shortly before March 1989, is flawed.

Faced with such evidence it is hardly surprising that the learned Chief Magistrate found no case to answer. It would have been quite remarkable had he taken any other course. The Director of Public Prosecutions seeks in this court to suggest that in giving that evidence Thompson Turueke was lying. With respect to the learned Director, that hardly goes to strengthen his case, and is a point which should have been putt to the witness at the trial. It is not a matter that this court can now consider.

Also before the Chief Magistrate when he considered this case was the transcript of the High Court civil proceedings. From the record it appears that this document was agreed to be admitted. This document becomes relevant for the purposes of these charges as it provides evidence that the appellant in producing these two letters made it clear (at least in the High Court proceeding) that those letters as given to Mr. Goh in March 1989 were reproductions of what had been written and sent in February 1988.

Such as explanation goes to support the appellant in his contention that there was no case to answer, although to what extent such support is necessary given the general lack of evidence earlier referred to must be in doubt.

This court therefore cannot accept the findings of the learned Commissioner in determining that there was prima facie case made out in respect of these two charges. Quite simply the evidence does not support a finding and on that basis alone the appeal must be allowed and the order of the learned Commissioner set aside.

By the Court
Goldsbrough JA.