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Public Prosecutor v Seule [2005] VUSC 85; CRC 035 2004 (27 June 2005)

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

CRIMINAL CASE No. 35 of 2004

PUBLIC PROSECUTOR

-v-

SIMEON SEULE

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Lent Tevi for the Prosecution
Mrs Mary Grace Nari for the Defendant

JUDGMENT

This is the trial of the Defendant, Simeon Seule. The Defendant was charged and pleaded not guilty to the offences of Forgery, contrary to Section 140 of the Penal Code Act [CAP. 135] and Theft, contrary to Section 125(a) of the Penal Code Act.

The thrust of the prosecution case is that on Tuesday 2 September 2003, the Defendant, Simeon Seule, stole Vatu 150,000 from Mr Binnefield and that he did so by forging the signature of Mr Binnefield on Mr Binnefield’s cheque No. 49 which he took from Binnefield without Mr Binnefield’s knowledge.

The Defendant pleaded alibi in this case. The Defendant’s case is that the Defendant was with Mr Binnefield at the time of the alleged commission of the two (2) offences and he could therefore not have committed the said offences.

The offence of Forgery is defined under Section 139 of the Penal Code Act. It provides:

“139.(1) Forgery is making a false document, knowing it to be false, with the intent that it shall in any way be used or acted upon as genuine, whether within the Republic or not, or that some person shall be induced by the belief that it is genuine to do or refrain from doing anything, whether within the Republic or not.

(2) For the purposes of this section, the expression ‘making a false document’ includes making any material alteration in a genuine document, whether by addition, insertion, obliteration, erasure, removal or otherwise.

(3) For the purpose of this section the expression ‘false document’ means a document –

(a) of which the whole or any material part purports to be made by any person who did not make it or authorize its making;

(b) of which the whole or any material part purports to be made on behalf of any person who did not authorize its making;

(c) in which, though it purports to be made by the person who did in fact make it or authorize its making, or purports to be made on behalf of the person who did in fact authorize its making, the time or place of its making, whether either is material, or any number or distinguishing mark identifying the document, whether either is material, is falsely stated;

(d) of which the whole or some material part purports to be made by a fictitious or deceased person, or purports to be made on behalf of any such person; or which is made in the name of an existing person, either by him or by his authority, with the intention that it should pass as being made by some person, real or fictitious, other than the person who makes or authorizes it.

(4) It is immaterial in what language a document is expressed or in what country or place and whether within or beyond the Republic it is expressed to take effect.

(5) The crossing of any cheque, banker’s draft post office money order, postal order or other document the crossing of which is authorized by law, is a material part of such document.”

Section 140 prohibits the offence of Forgery and imposes a maximum penalty of 10 years imprisonment.

The following are the essential elements of the offence of Forgery, contrary to Section 140 of the Penal Code Act:-

1. The Defendant made a false document (Cheque No.49) by making a material alteration in a genuine document by addition and insertion (Mr Binnerfield’s signature);
   
2. Knowing it to be false;
   
3. With the intent that it (the cheque No.49);
   
4. Be used or acted upon as genuine.
   

The offence of Theft is defined under Section 122 of the Penal Code Act in this way:

“122.(1) A person commits theft who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof;

(2) A person shall also be guilty of theft of any such thing not withstanding that he has lawful physical control thereof, if, being a bailee or part owner thereof he fraudulently converts the same to his own use or the use of any person other than the owner.

(3) For the purpose of subsection (1)-

(a) the word ‘takes’ includes obtaining physical control-

(i) by any trick or by intimidation;

(ii) under a mistake on the part of the owner with knowledge on the part of the taker that physical control has been so obtained.

(iii) by finding, whether or not at the time of finding the finder believes that the owner can be discovered by taking reasonable steps;

(b) the words ‘carried away’ include the removal of any thing from the place which it occupies but in the case of a thing attached, only if it has been completely detached;

(c) the word ‘owner’ includes any part-owner or person having physical control of, or a special property or interest in, anything capable of being stolen.”

Section 125(a) prohibits Theft with a maximum penalty of 12 years imprisonment.

The essential elements of the offence of theft are set out below:

1. The Defendant on 2 September 2003, without the consent of the owner of the property (Mr Binnefield);
   
2. Fraudulently (forging the signature of Mr Binnefield);
   
3. Without a claim of right made in good faith;
   
4. Took away anything capable of being stolen.
   

To secure a conviction against the Defendant on each and both counts, the prosecution must prove each and all essential elements of the offences as charged against the Defendant as I set them out above on the criminal standard of beyond a reasonable doubt. This means that if there is a reasonable doubt I must interpret it in favour of the Defendant and acquit him of the charges he is facing. On the contrary, if I am certain on the evidence presented of the culpability of the Defendant, I must convict him as charged.

The Defendant exercises his right to give evidence. Having done so, his evidence must be assessed on the same basis and like manner as the evidence of other witnesses of the prosecution.

The prosecution case rested on circumstantial evidence, and therefore, the onus rested on the prosecution to prove beyond reasonable doubt that there was no reasonable explanation for the Defendant’s conduct, as established by the evidence, that was consistent with his innocence.

The facts of the prosecution case are as follows:-

(a) On Wednesday 10 September 2003, when the complainant Mr Binnefield checked his ANZ cheque Bank Account No.908953 statement he found the statement had recorded a cheque withdrawal of VT150,000.

(b) This cheque withdrawal of VT150,000 from Mr Binnefield’s account was made through presentation of ANZ cheque No.49 on September 2, 2003. ANZ cheque No.49 was a cheque leaf from Mr Binnefield’s cheque book.

(c) That ANZ cheque No.49 was not signed by Mr Binnefield nor Ms Eliz William, the authorized account signatories.

(d) That on that same date Mr Binnefield found that ANZ cheque No.42 and 45 were also missing. And that he placed a stop payment request for cheque No. 42 and 45 with the ANZ Bank.

(e) That on Tuesday 2 September 2003 at the Sea Wall, the Defendant has a conversation with Abela Talpoa. During that conversation the Defendant told Mr Talpoa to follow him and cash a cheque that he had signed in the sum of VT150,000.

(f) That on that day, Mr Talpoa waited by a Christmax tree behind the ANZ Bank for the Defendant to go and present the cheque to withdraw money that afternoon.

(g) That on 2 September 2003, there was a cheque withdrawal from ANZ Bank Account No.908953 of VT150,000.

(h) That on Tuesday 2 September 2003, the Defendant presented the cheque for withdrawal of VT150,000 and that he was the person asked to sign the reverse of the cheque.

(i) The Defendant did forge the signature of the Mr Binnefield on cheque No. 49 for the withdrawal of VT150,000 at the ANZ Bank.

(j) That during the period of the theft, Mr Binnefield was working on a Tourism project and sought the assistance of the Defendant. During that period the Defendant worked closely with Mr Binnefield and accompanied him on most occasions and also assisted with the negotiations.

Prosecution evidence

The prosecution called the following witnesses: Mr Reiner Binnefield, Chief Apela Talpoa, Bank Teller – Ian Huri and the Police Investigation Officer Thomas Toara.

Mr Reiner Binnefield is the first prosecution witness.

• Mr Reiner Binnefield stated that he and the Defendant had being working together for 4 to 6 weeks on a project proposal for an Investment Certificate.
• That was from the months of August and September 2003.
• Mr Binnefield stated that at time of their working together they had a good working relationship and good understanding between each other.
• Mr Binnefield stated that they were preparing a Project Proposal for a Tourism Project at Et Maat Village at Erakor.
• However, he could not obtain a Government Investment Certificate, and that the Project was deferred to another time because there are changes required to be done in their project proposal.
• Mr Binnefield stated that the Defendant prepares the entire related to the Project.
• Mr Binnefield stated that in September 2003 he went to the Post Office and collected his mail there.
• When he opened one of his letters, which is a letter from ANZ Bank, and inside it his Bank Statement, he could see that an amount of VT150,000 was withdrawn from his cheque No.49 that was withdrawn by him.
• Mr Binnefield stated that he could not remember where he had spent the amount of VT150,000.
• Mr Binnefield stated that he had checked from his Cheque Book on the left side of the book to see from the receipt of the cheque No.49 to see what he had paid for with the money, but found that there was no writing on the receipt.
• He then went to the ANZ Bank to request and check the cheque No.49.
• At the ANZ Bank he saw that the writing and signature on the cheque was not his, nor for his wife Eliz Williams as at that time his wife was in Epi Island. She returned from Epi on 3^rd September 2003.
• Mr Binnefield then could identify that the writing on the cheque No.49 to be that of the Defendant writing.
• Mr Binnefield then stated that he could remember that on one occasion on 2 September 2003 at about 1.30PM in the afternoon, behind ANZ Bank, Sea Front Area after parking Mr Binnefield’s car near the children’s play ground, the Defendant told him that he had a case with his former wife so he needed some money in the amount of VT70,000 for the matter.
• Mr Binnefield stated that the Defendant during that time went to ask for money for that matter.
• The Defendant then left the car and went, while Mr Binnefield stated that he left the car and went to Sea View and then went to look for Trading Post and then return to his car. Mr Binnefield returned to his car about 2.30PM. He stated two girls told him that a man went to his car between 1.30PM or 2.00PM o’clock after his return to the car. When the Defendant approached him Mr Binnerfield asked the girls if the Defendant is the man they saw. The girls said yes.
• At that time, Mr Binnefield stated that he had left his black bag and Cheque Book in the car.
• When he returned to the car, not long afterward the Defendant approached him and then they left again. Mr Binnefield stated it must be 2-3 minutes after 2.30PM or 25 minutes past three (3.25PM).
• Mr Binnefield then stated that he went and dropped the Defendant and went back home.
• At that time Mr Binnefield stated that he did not realize what had happened to him, however he stated that the Defendant must had stolen the cheque from the black bag while the car was parked at Sea Front near the children play ground.
  

In his cross-examination Mr Binnefield stated after he was shown the cheque No. 49 (Exhibit P1) that the cheque was his cheque, and suspected that the Defendant can forge his signature and withdraw the amount of VT150,000.

Mr Binnefield also stated further that even though he could not remember everything he still could remember that he went with the Defendant to park at the Sea Front behind the ANZ Bank and near the children play ground. This witness said he could not remember if he and the Defendant went to Microtech that afternoon. He also denied that he went to Naviti Internet Café on 2 September 2003.

Mr Binnefield also stated that he suspected that the Defendant could cash the cheque and know he can do that.

Apela Talpoa is the second prosecution witness. Mr Apela Talpoa gave evidence to the following effects:

• That on August 30, 2003 he came on MV Roena from Epi Island to Port-Vila.
• On 31 August 2003, they arrived at Port-Vila.
• He then went and stayed with Mr Reiner Binnefield at Binnefield’s residence at Namba 2 area.
• The next day Mr Reiner asked Mr Talpoa to go to Erakor with him.
• At that time Mr Reiner wanted to invest in a land at Erakor area.
• When they went to Erakor, there was Mr Reiner, Mr Talpoa and the Defendant.
• At the time the Defendant told Mr Reiner that Mr Talpoa is a Chief from Pentecost.
• Mr Talpoa felt bad that he later told Mr Reiner that he is not from Pentencost but that he is a Chief from Epi Island.
• They then went to Erakor half road.
• There Mr Reiner and the Defendant were to have a meeting with the Chief and landowner that Reiner is interested to purchase land in that area.
• After the meeting, they returned when the Defendant asked Mr Talpoa to ask Mr Reiner money, however he did not ask Mr Reiner money.
• Mr Reiner and the Defendant then went and dropped Mr Talpoa at Tebakor area where he stated he was staying.
• The next day 2 September 2003, Mr Talpoa went to the market.
• While at the market he saw the Defendant, Mr Reiner, and his wife.
• Then the Defendant came to him and asked him to follow him.
• At that time the Defendant, Mr Reiner and his wife just returned from Erakor where they had a meeting with the Chief and landowner of land Mr Reiner was interested in.
• Mr Talpoa then stated that the Defendant approached him and asked him to follow him.
• They came to a place where Mr Talpoa described as Bank belongs to Mr Ezra of Ambrym. At that place there were steps going up to that Office, near a coffee area.
• At that place the Defendant sat on the steps while Mr Talpoa stood and heard that the Defendant told him that he had signed a cheque and gave it to someone to cash it but he could not get the money from the cheque.
• Then, the Defendant told Mr Talpoa that he had already signed a cheque of VT150,000.
• Mr Talpoa on the other hand was afraid and said he could not go to the Bank, but the Defendant told him not to be afraid.
• At that time, Mr Talpoa stated that the Defendant was signing a cheque and writing on the cheque.
• Mr Talpoa stated that he saw and knows it is a cheque and saw it. And he also knows that people signs cheques.
• Mr Talpoa stated that the Defendant signs the cheque from where he was sitting.
• After the Defendant had signed the cheque, and he told Talpoa to go to the ANZ Bank with him. While they were going, Mr Talpoa stated that he waited under a Christmas tree behind the ANZ Bank while the Defendant walked to the Bank.
• Mr Talpoa stated that while he was still waiting for the Defendant his wife catch him there and asked him to follow him to the Municipal then to the wharf.
• At that time he did not know whether the Defendant had withdrawn the money or not.
• Mr Talpoa stated that after on the night of that day he boarded a ship and traveled back to Epi Island.
• He made a statement to the police. He could not remember about the date. His statement was shown to him. He looked at it and stated he could not read it but he signed it and that was his statement to the police. [dated 14 September 2003].
• In Epi Island, Mr Talpoa stated that he told the Defendant’s father that the Defendant will steal somebody’s money from a cheque he had signed.
• Mr Talpoa stated after he had heard that Mr Binnefield had his cheque being stolen he then traveled to Port-Vila again to report the time he had met the Defendant who had signed a cheque to the police.
• Mr Talpoa confirmed that what he had stated to the police are all true and his statement was tendered as Exhibit P3.
  

In cross-examination, Mr Talpoa stated the following:

• That he followed the Defendant from the Market House to Mr Ezra of Ambrym’s Bank, where the Defendant signed a cheque, then they went to the ANZ Bank but he waited for the Defendant under a Christmas tree behind the Bank when the Defendant went to the Bank. He said he did not see Mr Binnefield behind the ANZ Bank in that afternoon in the car at about 2.30PM by the defence were not asked by the prosecution.
• The Defendant saw that the Defendant signed a cheque book, and stated that the Defendant told him to wait under the Christmas tree. This witness admitted that he was staying at Tebakor as he said in his statement to the police but he did not stay with Mr Binnefield. He admitted that part of his statement was not true.
  

Bank Teller – Ian Huri is the next prosecution witness.

In his evidence, Mr Ian Huri gave evidence to the following effect:-

• That he was a Bank Teller on the date the offence occurred.
• That this was confirmed on the number of the stamp on the cheque on the 2^nd of September 2003.
• That he made his report to his supervision and then later after identifying the cheque, made a statement to the police.
• That when the defendant was brought into the Bank for identification by Mr Toara Seule, he did not say anything to identify the Defendant until he did that in his report to his supervisor and statement to the police.
• In his statement to the police he stated that the Defendant was the person who had withdrawn the amount of VT150,000.
• That he had asked the Defendant what denomination did he want the money on, and the Defendant replied VT5,000 notes.
• At that time he gave the money to the Defendant.
• At that time also he had asked the defendant to sign on the reverse of the cheque No. 49.
• He stated that the cheque is an ANZ Bank cheque.
• Mr Huri also confirmed that he was the Bank Teller who cashed the cheque.
• Mr Huri also stated that now he works at the Meteorological Department.
  

In cross-examination, Mr Huri stated as follows:-

• He only worked for ANZ Bank for 1 year and that he knows his job as teller at ANZ Bank.
• He stated that he cross checked the cheque and identify it before doing the withdrawal. He said he did not have to identify the person cashing the cheque because it was a pay cash cheque.
• He also checked the signature on the cheque before releasing the money.
• In answering the question as to why he had let a Ni-Vanuatu cash the cheque, Mr Huri stated that the cheque came with ‘Pay Cash’ and it is not a non negotiable cheque.
• Mr Huri stated that he then asked the Defendant to sign on the back of the cheque.
• He also stated that because it is a open cheque (Pay Cash Cheque) it can be withdrawn at the counter.
• The signature on the back of the cheque is the signature of the person who had signed the cheque at the counter.
• Mr Huri also stated that he did not need to be supervised or ask his supervisor to release the cash of VT150,000 as it does not exceed the limit where he needs to be supervised.
• Mr Huri stated that the Defendant was the person who came over the counter to cash the cheque.
• He was shown his stamp on the cheque that had wrong dates. He was asked as to why he did not change the date. He said it was a busy day and errors can be made at such time. When asked why he did not make a statement quickly after 11 September, he said he could not do anything unless he was authorized by the Bank to do so. At the time of the identification of the Defendant in the office of the Supervisor, he observed and said nothing. He said he just stated that the person who cashed the cheque was the Defendant in his written statement to the police.
• He denied that the writing on the cheque would be that of Simeon who would write a project proposal as there is a spelling error on it.
  

The Police Officer, Mr Thomas Toara gave evidence and stated as follows:-

• He is a detective in the Criminal Investigation Department and has been working as a police officer for 23 years.
• He was detective since 1992.
• Mr Toara stated that he started the investigation during the time when the complainant Mr Reiner lodged a complaint against an unknown person who forged his signature on his cheque and withdrew VT150,000.
• Mr Toara stated that he obtained a statement from the complainant and asked if he knew somebody who forged his signature on his cheque.
• At that time, the complainant stated that he suspected only one person who is always close to him, who is the Defendant.
• Mr Toara also stated that he took the Defendant to the ANZ Bank to officer John Tahi and 3 other staffs and asked the teller to identify suspect (the Defendant).
• At that time the teller came and saw the suspect, the Defendant and then went out again without saying anything.
• Then Mr Toara took the Defendant to the police station and then cautioned and interviewed him, but he stated to only speak in Court.
• Mr Toara stated that another witness was interviewed, that is Mr Talpoa from Epi who came in and Mr Toara got his statement.
• In Mr Talpoa’s statement, Mr Toara stated that he stated that on a day the Defendant and Mr Talpoa and Mr Reiner went together to Erakor for an arrangement to get land there by Mr Reiner.
• After that Mr Talpoa and the Defendant went to La Terrace and the Defendant sat on the steps going up to Mr Ezra Bangtor’s Office.
• At that time Mr Talpoa stated in his statement that the Defendant told him that he had signed a cheque already but he could not get any money, so he will sign another one.
• Then Mr Talpoa waited at the Christmas tree while the Defendant went to the Bank, however while waiting, the Defendant did not return.
• After Mr Toara obtained Talpoa’s statement Mr Toara stated that he went back to the teller and the teller submitted his statement.
• In the teller’s statement he stated that he could remember that day that he had serve the Defendant and identify that it was the suspect that was brought into the Bank that did the withdrawal of the VT150,000 from Mr Reiner’s cheque No.49.
  

In cross-examination of Mr Toara, he stated that:-

• When the Bank teller went in to do the identification he did not say anything then went out again.
• Mr Toara also stated that based on the statement of Mr Talpoa and Mr Reiner he arrested the Defendant.
• On the basis that the Defendant tried to confuse Mr Toara on the signature and that there was no break in and that the Defendant was with Mr Reiner setting up his business.
  

That is the end of the prosecution’s evidence and case.

The Defendant understands his rights under s.88 of the Criminal Procedure Code which was read and explained to him and elects instead to give evidence himself and call two (2) other witnesses in his plea of alibi.

Defence Evidence

The Defendant gave evidence on his own behalf to the following effect:-

The Defendant testified that he worked with Mr Binnefield to assist him with his Tourism project at Erakor. At that time, Mr Binnefield had already bought property and make approaches to speak to the custom owners at Erakor. On the day prior to the time of the alleged offence, Mr Binnefield and the Defendant had seen Mr Talpoa in town and had gone with him to speak to the custom owner at Erakor.

On 2 September 2003, in the morning around 7.00AM, Mr Binnefield picked him up at his home at Erakor bridge to meet with the chief of Erakor Village. After meeting with the chief, they went to the Shefa Provincial Council office to see the Physical Planner. Between 10.00AM and 10.30AM, Mr Binnefield and the Defendant went to VIPA office and also had some ice cream at the Sea Front area. This is where the Defendant saw Mr Talpoa with some other people but he did not speak to him. The Defendant had lunch with Mr Binnefield at Felix Store near the Korman Stadium. After checking the Shefa Planner after 1.30PM, both the Defendant and Mr Binnefield went to Microtech to do photocopies and binding of the project proposal documentations. They spent about an hour in Microtech attending to photocopies. At 3.00PM, Mr Binnefield and the Defendant went into the Naviti Internet Café to collect certain information for the project. After half an hour, they returned to Microtech to do the binding and pay for the photocopies. Mr Binnefield then dropped off the Defendant at his home and picked him up at 5.00PM to go and meet the Chief at Ronnie’s nakamal. After the Defendant was dropped off at Erakor bridge, he remembered that Mr Binnefield owed him VT20,000 and so called him. Between 6.30-7.00PM, Mr Binnefield returned and gave him VT20,000 cash.

Witness Mr Sandy at Microtech testified that he had served both the Defendant and Mr Binnefield for an hour starting at about 2.00PM. After an hour, Mr Binnefield and the Defendant left to do some research on the internet and told him to keep their documents until their return. When they returned around 2.30PM they paid for their photocopies and binding and left. The witness recognized the Defendant as a regular customer.

Mrs Rose Tamata, (whose husbans owns Naviti Internet Café) stated that she worked in the Internet Café that afternoon on 2 September 2003. That afternoon around 3.00PM the Defendant and an expatriate and she gave a description of Mr Binnefield came into the Internet Café. She recognized the Defendant as the person who accompanied Mr Binnefield as Mr Binnefield did not speak Bislama well and therefore the Defendant translated in Binslama. The witness said that it was Mr Binnefield who signed their records that afternoon. A document showing the record of Naviti Internet Café was shown to the witness who identified it as a copy of their record and had a signature on it. The witness highlighted Mr Binnefield’s name and time after the Defendant followed up on his time during the investigation of the case. Mr Binnefield and the Defendant were in the Internet Café from 3.11 to 3.28PM from the records. The record was tendered into Court as D1.

That is the end of the defence evidence and case.

Discussion on Evidence: Findings and Credibility

I have carefully observed each and all witnesses and their demeanor in the witness box. I consider their evidence and make the following findings:-

I find Mr Binnefield’s first part of his evidence related to his account of events to when he discovered the forgery and theft to be of some credit. I reject the second part of his evidence as speculation when he stated to the effect that it is possible for the Defendant to forge his signature and steal the amount of VT150,000. I make no finding of credibility.

I find witness Talpoa making contrary statements in his oral and written statements. In his written statement dated 14 September 2003, he said when he arrived in Vila from Epi on boat MV Roena, he went to stay at Tebakor. In his oral evidence, he said when he arrived he went and stayed with Mr Reiner Binnefield at his house. He admitted what he said in his statement was not true. He further said that on 2 September 2003, he saw Mr Binnefield and his wife Eliz and the Defendant after they returned from Erakor. The evidence of Mr Binnefield is that on 2 September 2003, his wife Mrs Eliz Williams Binnefield was not in Vila. She returned from Epi on 3 September 2003. There are other inconsistencies in the evidence of this witness. I find this witness is not a credible witness.

I find that the evidence of the witness Bank teller – Ian Huri must be treated with caution as on the date of the identification of the Defendant he said nothing until 1 month later when he made his statement to the police.

The evidence of the police is based on what he obtained from the interview and the statements of the other witnesses. I make no finding of credibility in respect to him.

The Defendant when giving evidence was calm, clear and had good memories of what happened. He is a credible witness.

Witness Sandy was not moved in his evidence. He is a trustworthy witness.

Mrs Rose Tamata is also a credible witness as she gave evidence on the basis of the records of what she has in her office book records. She has a good recollection and memories of what she observed in her office on 2 September 2003.

The prosecution case is based on circumstantial evidence. This means that I must assess all evidence and consider them together at the end of the case. This is what I do in the present case.

In the present case, the charge of theft is dependent upon the findings in respect to the offence of forgery (in count 1). If I find against the Defendant in the first offence and convict him I must also convict him for the second offence. I will deal with the two (2) offences (count 1 and count 2).

There is no factual dispute that the following facts occurred:

(a) On Wednesday 10 September 2003, when the complainant Mr Binnefield checked his ANZ Bank account No. 908953 statement he found the statement had recorded a cheque withdrawal of VT150,000.

(b) This cheque withdrawal of VT150,000 from Mr Binnefield’s account was made through presentation of ANZ Cheque No.49 on 2 September 2003. ANZ cheque No. 49 was a cheque leaf form Mr Binnefield’s cheque book.

(c) That ANZ cheque No.49 was not signed by Mr Binnefield nor Ms Eliz William the authorized account signatories.

(d) That on that same date Mr Binnefield found that ANZ cheques No. 42 and 45 were also missing. And that he placed a stop payment request for cheque No. 42 and 45 with the Bank.

(e) That on 2 September 2003, there was a cheque withdrawal from ANZ Bank Account No.908953 of VT150,000.

(f) That during that period where the theft took place Mr Binnefield was working on a Tourism project. And at that time Mr Binnefield had sought assistance of the Defendant. The Defendant was during that period always close to and accompanying Mr Binnefield to assist with negotiations.

On the basis of the facts as found by the Court, there is doubt as to the Defendant committing the 2 offences as alleged against him. The doubt is a reasonable one. As such, I must interpret the doubt to the benefit of the Defendant.

I find that the prosecution fails to prove the essential elements of the offence of forgery, contrary to Section 140 of the Penal Code Act against the Defendant beyond a reasonable doubt.

VERDICT

The Defendant, Simeon Seule is not guilty to the charge of Forgery, contrary to Section 140 and Section 125(a) of the Penal Code Act [CAP. 135].

The Defendant, Simeon Seule is acquitted and discharged from the 2 offences against him.

DATED at Port-Vila this 27^th day of June 2005

BY THE COURT

Vincent LUNABEK
Chief Justice