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Adams v Public Prosecutor [2008] VUCA 20; Criminal Appeal Case 8 of 2008 (25 July 2008)

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

CRIMINAL APPEAL CASE No.08 OF 2008

BETWEEN:

LOPEZ ADAMS
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Chief Justice Vincent Lunabek
Justice John von Doussa
Justice Oliver Saksak
Justice Mark O’Regan

Counsel: Appellant in person
Mr Bernard Standish for the Public Prosecutor

Date of hearing: 21 July 2008
Date of judgment: 25 July 2008

JUDGMENT

This is an appeal against findings of guilt and convictions entered on 15 April 2008 following the trial before his Lordship Justice Tuohy.

By way of background, in the months of June and July 2007 a number of cheques drawn by the Government of the Republic of Vanuatu were fraudulently altered and deposited into various bank accounts in Port-Vila and thereafter unlawfully withdrawn. Investigations revealed that the primary offender behind the fraudulent activity was Salendra Sen Sinha (Salendra). When the fraudulent activity was discovered Salendra absconded from Vanuatu in breach of bail. However others who were alleged to have been involved with him in fraudulent activity stood at trial. The present appellant was one of those people.

At trial the appellant pleaded not guilty to the following charges:

Count 1: Complicity to commit Forgery, contrary to Section s 30 and 140 of the Penal Code Act [CAP.135].

Particulars

That between the 15th day of June 2007 and the 18th day of June 2007 at Port-Vila in the Republic of Vanuatu, Lopez Adams aided Salendra Sen Sinha to make a false document, namely a Government of Vanuatu cheque number 2154358 by making a material alteration to the document with intent that it be acted upon as genuine.

Count 2: Uttering a Forged Document, contrary to Section 141 of the Penal Code Act [CAP.135].

Particulars

That on the 19th day of June 2007 at Port-Vila in the Republic of Vanuatu, Lopez Adams, knowing that a document, namely a Government of Vanuatu cheque number 2154358 was forged, dealt with the document as if it were genuine.

Count 3: Obtain Property by Deception, contrary to Section 130D of the Penal Code Act [CAP.135].

Particulars

That Lopez Adams dishonestly obtained cheque number 2154358 in the amount of VT8,760,000 and deposited it in the Sportz Power account to which you personally have access in the ANZ Bank of Vanuatu at Port-Vila, knowing that you were only entitled to VT78,500.

On count 1 the prosecution asserted that Salendra had forged cheque No. 2154358 by altering the amount of the cheque from VT78,500 to VT8,760,000. The prosecution asserted that the appellant aided Salendra in forgery by providing the cheque to him in its original form. The appellant conceded that he had in fact given the original cheque to Salendra but denied guilty knowledge. On this charge the appellant was acquitted as the trial Judge was not satisfied beyond reasonable doubt that he knew at the moment he handed the cheque to Salendra in its original form that a forgery was a real possibility.

However on counts 2 and 3 findings of guilt were made and convictions entered. It was not in dispute at trial that Salendra had returned the cheque to the appellant; that the appellant had banked the cheque into an account in the name of his business, Sportz Power, over which he had authority and control; and that he made withdrawals from the accounts against the proceeds of the cheque. However the appellant denied that his actions were accompanied by guilty knowledge. The appellant offered a complex story in support of his innocent belief. The story involved loans made by the appellant to Salendra which Salendra in due course repaid with 100% interest. He said Salendra had informed him that the Government owed Salendra money, and that Salendra had arranged for the Government to alter the cheque so as to include moneys due to Salendra. The appellant deposited the altered cheque and drew upon it in the belief that the component of the cheque which represented moneys due to Salendra from the Government were in part repayment to the appellant of a loan of VT2,000,000 with the like amount of interest, and in part additional moneys that he was to withdraw and pay to Salendra.

The essential issue at trial was therefore the state of knowledge of the appellant and whether he knew the transactions the subject to counts 2 and 3 were dishonest. The trial Judge rejected the appellant’s evidence, finding that it involved lies on important issues. In finding guilt beyond reasonable doubt the learned Judge said:

"56. On Count 2 his state of knowledge has to be judged at a different time, that is when he deposited the cheque. Now he knew that the same cheque 2154358 which was for VT78.500 was now for VT8.760.000; he knew that a new cheque had not been issued to Salendra or to him; he knew the old cheque had been changed in a way that you could not obviously see and that is the old words and figures had been erased somehow and new ones put in; he knew his company Sportz Power was the payee and had no right to any Government cheque for more than VT78.500 let alone for such a huge sum VT8.760.000.

57. What he did afterwards also throws light on what he knew when he banked it. What he did afterwards was to keep VT4.959.005 of the proceeds of the cheque for himself, even though the most he could possibly justify was VT78.500 because the story of Salendra paying him back VT4m has been shown untruthful. Even assuming that some small sum was owed at the time by Salemdra, Lopez has kept well over VT4m which he could not possibly have any honest claim to. I conclude that this was his share for laundering this false cheque by depositing it in his bank account and paying part of it to Salendra."

At trial the appellant was represented by the Public Solicitor, Mr Hillary Toa. Appeal papers were filed against the conviction by Mr Toa. At the call over of the list on the first day of these sittings of the Court of Appeal, Mr Toa appeared for the appellant and informed the Court that submissions in support of the appeal would shortly be filed. This occurred on 17 July 2008. The submissions sought to address the adverse finding about the appellant’s state of mind by advancing fresh evidence which it was said would raise a reasonable doubt about the appellant’s guilt. Affidavits from the appellant and three other deponents were filed containing the additional information. The additional information sought to substantiate parts of the appellant’s evidence at trial which the trial Judge had rejected as untruthful.

At the call over the appeal was listed for hearing on 21 July 2008. Late on 18 July 2008 Mr Toa filed a Notice of Ceasing to Act for the appellant. When the case was called on for hearing on 21 July 2008, Mr Toa appeared only to confirm he was no longer acting, and that Mr Edward Nalyal was now to act for the appellant. Mr Toa invited the Court to adjourn the appeal to the November 2008 Sessions as Mr Nalyal was not at Court.

The appellant was present. The Court explained to him reasons why the appeal against conviction needed to be heard during the current sessions. The appeal was then stood over until later in the day to enable Mr Nalyal to attend, and to complete his instructions.

When the matter was recalled, Mr Nalyal appeared. He informed the Court that after conferring with the appellant, his instructions have been withdrawn. The Court granted him leave to withdraw. This left the appellant to present his case in person.

The Court had the benefit of the detailed submissions in writing filed by Mr Toa, the affidavit of the appellant explaining why he considered that the appeal should be allowed, and the affidavits of the three deponents from whom he sought to lead fresh evidence. The issues raised by the appeal were clear enough, and the information before the Court enabled those issues to be properly considered. The Court was able to confirm by questions to the appellant that his grounds of appeal turned on the Court taking into account additional information in the affidavits as fresh evidence.

The central issue therefore is whether the Court should receive the additional information as fresh evidence.

Before addressing this question there is a formality about the appeal papers which requires the Court’s attention. The Notice of Appeal was filed within 14 days of the conviction as required by s.201(1) of the Criminal Procedure Code Act [CAP.136]. However the Memorandum of Appeal which sets out the grounds of appeal was not filed within the time required by s.201(3), so unless time is extended for the filing of the Memorandum of Appeal, the appeal is deemed by s.201(5) to have been withdrawn. The Public Prosecutor raises no objection to the Court granting an extension of time, and accordingly the Court does so pursuant to the power in s.201(4)-(6).

Turning now to the merits of the appeal, section 210 of the Criminal Procedure Code [CAP.136] provides that the Court of Appeal can receive additional evidence. However the circumstances in which an appeal court will receive evidence of the kind advanced by the appellant are well established and clear. Where the evidence sought to be adduced is "fresh evidence", being evidence that existed at the time of the trial but was not called, as opposed to "new evidence" which is evidence that comes into existence after the trial, the fresh evidence must meet four characteristics which are correctly identified by Mr Toa in his written submissions by reference to the decision in R v. Nguyen [1998] 4 VR 394 at 400-401. The Court must be satisfied that the fresh evidence is:

(a) Evidence that was not available or could not with reasonable diligence have become available at the trial;

(b) The evidence is relevant and otherwise admissible;

(c) The evidence is apparently credible (capable of belief);

(d) There is a significant possibility that the evidence, if believed, would reasonably have led to the acquittal of the appellant if the evidence had been before the Court at trial.

The purpose of these principles is to require that at a trial each party leads all the evidence which they wish to rely on, and to prevent an unsuccessful party later reformulating the basis of his case and seeking to have a second attempt to establish a position which failed at the first trial. Finality in litigation, both criminal and civil, is a fundamental object of the court process. Subject to the right of appeal, it is only in exceptional circumstances that a party can revisit the evidence by supplementing that given at the trial.

The unsurmountable hurdle faced by the appellant in the present case is the first of the above requirements. The additional information sought to be relied on in this case is from witnesses who were available at the time of trial and whose evidence clearly enough was either known to the appellant or could simply be ascertained by him by asking the witness. The deponents to the affidavits filed by the appellant are first, the appellant himself who seeks to expand on aspects of his evidence given at trial, and to clarify his position regarding the source of part of the funds lent to Salendra which he claims were the subject of repayment from the proceeds of the cheque. In no sense is evidence from the appellant fresh evidence. The matters raised in his affidavit could have been raised by him at trial and indeed some of them were. The appellant also annexes to his affidavit character references. In so far as evidence of good character might have been relevant at the trial, it was open to the appellant to call the referees. There was no suggestion that they were not available had they been needed. The evidence from the referees at this stage is relevant only to the sentencing process which is still to occur.

The next deponent is a woman described by the appellant as his girlfriend. She deposes to making a loan to the appellant which was the source of part of the money which the appellant says he lent to Salendra. This evidence could have been important at trial as other explanations advanced by the appellant about the source of the money had not been substantiated by bank records. Indeed one of the explanations given by the appellant was found by the trial Judge to be a deliberate lie. The appellant says that he did not call his girlfriend as a witness at trial as he was seeking to protect her from publicity. However, the girlfriend was available and her evidence was known to the appellant. He made a decision not to call her and must now bear the consequences of that tactical decision. The information in this affidavit is not fresh evidence and cannot be received by the Court of Appeal.

The next deponent is Mr Raymond Chris. He deposed that he was with Salendra and the appellant when some of the transactions relating to the fraudulent cheque occurred. Quite apart from the doubtful relevance of the information in his affidavit, obviously the information he could give was known to the appellant at the time of trial, and the witness could have been called. Again, it seems that a tactical decision was made not to call the witness, a decision that is hardly surprising as the prosecuting authorities claimed that Mr Chris is a friend of Salendra, and he had been earlier charged in Vanuatu with Salendra and another person for counterfeiting currency offences. Mr Chris’ evidence is not fresh evidence.

The last deponent is Ms Wendy Lango, the office secretary of the appellant’s business, Sportz Power. Ms Lango was a prosecution witness at trial. In her statement she seeks to support aspects of the evidence given by the appellant at trial. All the information she deposes to, in so far as it is not inadmissible hearsay evidence, could have been led from her by the appellant while she was in the witness box. Her evidence does not qualify a fresh evidence.

The tender of the four affidavits filed by the appellant as fresh evidence must therefore be refused. Without this fresh evidence, the grounds of appeal set out in the appeal papers are without substance. Having considered the reasons for decision delivered by the trial Judge, the written submissions of Mr Toa, the affidavit of the appellant in so far as it contains arguments in support of his appeal, and the submissions of counsel for the respondent, we are satisfied that the finding of guilt was rightly made, and that the appeal should be dismissed.

The appeal is dismissed.

DATED at Port-Vila this 25th day of July 2008

BY THE COURT

Hon. Vincent LUNABEK CJ
Hon. John von DOUSSA J
Hon. Oliver SAKSAK J
Hon. Mark O’Regan J