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Police v Tevaga [2016] WSSC 192 (28 October 2016)

IN THE SUPREME COURT OF SAMOA
Police v Tevaga [2016] WSSC 192

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

PESETA VAIFOU TEVAGA, male of Samalaeulu.
Defendant

Counsel:
M.Lui and L.Sio for Informant
O.Woodroffe for Defendant

Hearing: 26-28 September 2016

Decision: 28 October 2016

JUDGEMENT OF TUATAGALOA J

The charges:

1. The defendant is charged with one count of forgery under section 194(2) and one count of using a forged document under section 195(1)(b) as follows:

“...that on the 13^th day of June 2013, the above named defendant of Samalaeulu made a false document, namely the Notice of Resolution of Board of Directors dated 13 June 2013 relocating the shares of Local Partners and Associates, with the intent that it be used and acted upon as genuine, thereby commit the crime of forgery.”

“...that at Savalalo on the 16^th day of September 2015, the above named defendant of Samalaeulu, knowing a document to be forged namely, The Notice of Resolution by Board of Directors, dated 13 June 2013, uses and deals with the document as if it were genuine.”

The background:

2. The Board of Directors referred to in the information is that of the company Local Partners and Associates (LPA) which was set up on 21 January 2013 and registered in February 2013. The company has three (3) shareholders/directors with the following shares:

Leiataua Danny Schwenke: 35%

Martin Schwalger: 32.5%

Apulu Lance Polu: 32.5%

3. Before LPA there was a company called Local Partners. Local Partners had only two shareholders – Leiataua Danny Schwenke and Martin Schwalger. The inclusion of Apulu Lance Polu as a shareholder changed the name to Local Partners and Associates.
4. Shortly after LPA was set up the company called Pure Pasifika which operated a nonu factory at Vaitele went in to receivership. LPA approached the National Provident Fund (NPF) for a loan to buy the nonu factory and in order for NPF to grant the amount LPA was asking for the defendant to put up his land at Vaitele said to value at more than a million as security. The security for the loan also consisted of the Pure Pasifika assets of vehicles, warehouse, equipment, 6000 litres of nonu juice and personal guarantee of Apulu Lance. It was clear that there was no money put in by the shareholders at the time.
5. The evidence is that Leiataua Danny was the representative of his father the defendant, Peseta Vaifou on LPA and Martin Schwalger in his own evidence as the representative of Laauli Leuatea and Apulu Lance as or for himself. Their involvement in the affairs of the company was accepted by the registered shareholders including the company lawyer.

The law:

(a)Forgery: s.194(2)

6. Section 194 says that:

“(1) A person is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.

(2) A person is liable to imprisonment for a term not exceeding 10 years who makes a false document, knowing it to be false, with the intent that it in any way be used or acted upon, whether in Samoa or another country, as genuine.

(3) Forgery is complete as soon as the document is made with the intent described in subsection (1) or with the knowledge and intent described in subsection (2).

(4) Forgery is complete even though the false document may be incomplete, or may not purport to be such a document as would be binding or sufficient in law, if it is so made and is such as to indicate that it was intended to be acted upon as genuine.”

7. The essential elements for the offence under section 194(2) that the prosecution must prove beyond reasonable doubt are:
   1. The defendant made the false document;
   2. The defendant knew the document to be false; and
   100. The defendant intended that the document be used or acted upon as if it were genuine.
8. The forgery provision (s.194) in the Crimes Act 2013 mirrors that of the New Zealand forgery provision section 256 except that the penalties under section 194(1) and (2) are the same with maximum 10 years imprisonment but in New Zealand the penalty under section 256(1) is maximum 10 years while under subsection (2) is maximum 3 years imprisonment.
9. Section 194(1) contemplates the maker using the false document himself or herself but section 194(2) embraces the use of the false document either by the maker of the false document or by anyone else.^[1]
10. The ‘act’ under s 194 is the act of making a false document.
11. Section 193 defines false document to mean:^[2]
    1. of which the whole or any material part purports to be made by any person who did not make it, or by a fictitious person (captures forgery of a person’s signature)^[3]; or
    2. of which the whole or any material part purports to be made by or on behalf of any person who did not authorize its making, or on behalf of a fictitious person;^[4] or
    100. of which the whole or any material part has been altered, whether by addition, insertion, deletion, obliteration, erasure, removal, or otherwise, and that purports to have been altered by or on behalf of a person who did not alter it or authorize its alteration, or by on behalf of a fictitious person (captures altered documents)^[5]; or
    4. that is, in whole or in part, a reproduction of any other document, and that purports to have been made by or on behalf of a person who did not make it or authorize its making, or by or on behalf of a fictitious person (captures reproduction of document)^[6]; or
    5. that is made in the name of a person, either by that person or by that person’s authority, with the intention that it should pass as being made by some other person who did make it, or by a fictitious person. Paragraph (e) captures a document made in the name of the genuine person, that is, “a defendant may make a document in his or her own name or have it made with his or her authority with the intent that it will be accepted as having been made by another of the same or similar name”.^[7]

(b)Using forged document: s.195(1)(b)

12. Section 195 says:

“(1) A person is liable to imprisonment for a term not exceeding 7 years, who knowing a document to be forged:

(a) uses the document to obtain property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b) uses, deals with, or acts upon the document as if it were genuine; or
(c) causes any other person to use, deal with, or act upon it as if it were genuine.

(2)For the purposes of this section, a document made or altered outside Samoa in a manner that would have amounted to forgery if the making or alteration had been done in Samoa is to be regarded as a forged document.”

13. The elements of the offence the prosecution must prove beyond reasonable doubt are:
    1. The defendant knew the document to be false; and
    2. The defendant used or dealt with or acted upon the false document as if it were genuine.
14. The ‘act’ under s 195 is the act of using or dealing with the false document.
15. Section 195(1)(b) is a parallel provision to section 194(2) in that “the intent required for the making of a false document in forgery is carried into effect in the use”.^[8] CJ Elias in her judgment (obiter) at [22] says:

“Section 257(1)(a) (equivalent to our section 195(1)(a)) expresses the intent with which the document is used in comparable terms to the use intended in the making under s 256(1) (equivalent to our s 194(1)). Similarly, the uses described in paras (b) and (c) of s 257 (equivalent to our s 195(1)(b) and (c)) correspond to the uses described in s 256(2) (our s 194(2))”.

16. Section 194 is concerned with the ‘making’ of the document while section 195 is about the ‘use’ of that document.

The allegations:

17. The prosecution alleged that the defendant not only made the Resolution letter but also forged the signature of Martin Schwalger.
18. The defense case is that:
    1. The defendant did not make the Resolution but the company lawyer Maiava Visekota;
    2. The Resolution was signed by Martin Schwalger himself; and further
    100. There was a board meeting on 29 May 2016 which the board made the following resolutions:
         • (i) Leiataua Danny’s resignation from the company
         • (ii) Transfer of Danny’s shares to his father, Peseta Vaifou
         • (iii) The shares to Peseta will be at 50%

The evidence:

19. The Notice of Resolution (EXH P1) referred to is a copy. The ‘original’ was not made available to the court.
20. There was no issue about the defendant’s signature nor was there an issue that the Notice of Resolution was presented or used by the defendant.
21. The prosecution witnesses – Laauli Leuatea, Apulu Lance and Martin Schwalger were recalled as the following issues which came out in the evidence of the defendant was never put to the witnesses:
    • Apulu changed the shareholding on company registry; and
    • The issue of signatories or signees to the company bank accounts was discussed at the board meeting of 29 May 2013.
22. A defendant is entitled to remain silent throughout trial but if he elects to give evidence it is to be regarded as forming part of the whole of the evidence available for the fact finder. The defendant in this case elected to give evidence.
23. The prosecution called five witnesses – Laauli Leuatea, Apulu Lance (shareholder), Martin Schwalger (shareholder), Alataua Tuliaupupu (ACEO MCIL) and Ivanhoe Letele (MCIL).
24. The defense also called five witnesses – Peseta Vaifou (defendant), Danny Schwalger (shareholder), Maiava Visekota (LPA lawyer), Linda Morrell (expert) and Semi Leung Wai. The evidence of Semi Leung Wai had no relevance to proving the charges before the court.
25. The prosecution witnesses (Laauli Leuatea, Martin Schwalger and Apulu Lance) said in evidence that there was no meeting of the board on 29 May 2013. They said that at no time was it ever raised by the defendant with them or discussed by the board any of the following as in The Notice of Resolution dated 13 June 2013:
    1. Resignation of Danny Schwenke;
    2. Transfer of Danny’s shares to the defendant, Peseta Vaifou; and
    100. The defendant to hold 50% shares.
26. They said that the board had a meeting sometime in June 2013 and it was only to discuss the signatories or signees to the company’s account with Westpac Bank to include the defendant Peseta as the main signatory and either one of Apulu Lance and Martin Schwalger as co-signatories. This was agreed upon which letter (EXH P3) they all signed.
27. Laauli in his recalled evidence when cross examined by counsel for the defendant was adamant that there was no board meeting on 29 May 2013 as he was busy preparing for the parliament sitting the next day to discuss the budget so he could not have been to a meeting. Laauli at the time was the speaker of the house. He said the only board meeting they had was to discuss the issue of the signatories to the company account to include the defendant.
28. Apulu in his evidence said that he usually takes the minutes for the company meetings and that there were no minutes of a meeting on 29 May 2013 because there was no meeting. He said that the company since inception in January 2013 had only met twice – first meeting was in January 2013 to set up LPA and the second when they met over the signatories to the bank to include Peseta as the main signatory.
29. Apulu was recalled because the issue of the registration of 35% to his name only came out when the defendant gave evidence. This was never put to Apulu by defense counsel nor included in his evidence in chief. Apulu explained that the wrong registration was not his fault but that of MCIL. He said he forwarded The Resolution of the Board letter to MCIL (EXH P2) dated 05 February 2013 which letter record 35% to Danny and 32.5% to him and Martin. He emailed with Alataua Tuliaupupu, ACEO of MCIL who by email dated 27 June 2013 (EXH P6) apologized for the error and that they have corrected the record on the electronic registry of LPA company. The court accepts that the fault was not of Apulu but that of MCIL.
30. Martin in his recalled evidence said he was called about a meeting. He was late and when he got there the meeting had finished. He said he was told by Laauli that the meeting was about the signatories to the company’s bank account and that they have agreed to have Peseta as the main signatory and him and Apulu as co-signees.
31. The defendant Peseta and his son Danny were themselves adamant that there was a board meeting at the LPA office at Vaitele on 29 May 2013. Peseta said that everyone was present, the three shareholders, Danny, Martin, Apulu, himself and Laauli. He said the shares, resignation of Danny and signatories to the account were discussed and agreed to as reflected in the Notice of Resolution dated 13 June 2013. He said that he attended to Maiava Visekota’s office with Danny on 31 May 2013 and told her of the board resolution. He instructed Maiava on that same day to draft a notice of resignation for Danny which she did (EXH D2) and he and Danny signed it. Danny gave evidence to the same effect. Maiava confirmed that she prepared the Notice of Change of Directors (EXH D2) signed by both Peseta and Danny and witnessed by her.
32. The evidence is that the defendant was most unhappy with the way LPA was being run by the other shareholders (Apulu Lance and Martin Schwalger) and Laauli Leuatea and especially when his son Danny Schwenke who is the major shareholder being excluded from the affairs of the company and as a signatory to the company’s account. The defendant said that he went to MCIL to check up on the shareholding and found out that the shareholding was not as they agreed. That is, Danny who was supposed to hold 35% was registered with 32.5% and Apulu Lance holding 35%. It was then in his own words that he started not to trust the others in the company. Peseta said that since June 2013 until registration in June 2015 he keeps checking the company registry to see if the transfer of shares by way of Resolution letter has been registered but it was not. He keeps following up with Maiava Visekota why the transfer of shares has not been registered but Maiava keeps telling him that she will attend to it as she was busy.
33. The two employees of Ministry of Commerce Industry and Labour (MCIL) where the company registry is, Alataua Tuliaupupu and Ivanhoe Letele gave evidence that the companies registration system is electronic and that every company must nominate a person to MCIL. This person will be given a password to access the MCIL company electronic system to register any changes regarding the company. The nominated person for LPA was Maiava Visekota.
34. Peseta went to MCIL in 2015 to try and register the transfer of shares and he took with him the Resolution letter. He was served by Ivanhoe Letele who told him that he cannot register the transfer because they (MCIL) do not have the password for the company to make the changes nor either of them is authorized to make the changes. It was then that Peseta called Maiava Visekota on his mobile and spoke with her. Peseta said he repeated his disappointment to Maiava that the transfers still have not been registered and that he was at MCIL to have the transfer of shares registered. The evidence is that Maiava released the password to Ivanhoe to enable the registration of transfer of shares.
35. Maiava Visekota who is a witness for the defendant said she does not attend any meeting of LPA. She was told by Peseta of the company’s meeting said to have been held on 29 May 2013. She said that Danny’s resignation as in para [1] was according to her instructions was the resolution of the board at its meeting on 29 May 2013. As to para [2] it was to her knowledge that it was not a resolution of the board but was the result of a meeting between the defendant and Laauli in her office. She said that Peseta came in to her office one day (she could not remember) and spoke to her of his disappointment at how the company was being run, his son being kept out and not included as one of the signatories to the company’s account. She suggested to Peseta for him and Laauli to meet and sort it out. Peseta agreed and she then set up the meeting between Peseta and Laauli to meet in her office.
36. Peseta disputed that part of Maiava’s evidence saying that he never agreed to meet with Laauli. It was supposed to be Martin to turn up on that day to sign the resolution instead Laauli turned up. He then met with Laauli and told him of his disappointment with the way the company is being run and how his son is being kept out of the company’s affairs including not being a signatory to the account. It was then he told Laauli to revert the shares back to how it was before of 50:50. That is, 50% to him and Laauli sort out with Apulu about his 50%.
37. Laauli himself agreed with the evidence of Maiava that she called him for a meeting with Peseta in her office. He also agreed that it was at this meeting that Peseta brought up the issue of shares to which he discussed with him but did not agree to Peseta holding 50% shares as in the resolution dated 13 June 2013 (EXH P1). Maiava’s evidence is that Peseta and Laauli agreed on the transfer of shares but that it was left to Laauli to sort out the division of 50% shares with Apulu Lance. She said it was also agreed at that meeting that she would prepare a resolution accordingly and Peseta to arrange with Martin to come in to sign. This part of Maiava’s evidence does not make sense as to why Peseta would arrange with Martin to come in to sign when Peseta said to Laauli that he sort out the other 50% with Apulu which would also include Martin who is Laauli’s representative on the company. If anyone to arrange for Martin to sign, it would or should be Laauli.
38. The prosecution witnesses were asked by counsel for the defendant that the sole motive of their criminal complaint against Peseta saying there was no board meeting is revenge for his filing a civil claim against them. The witnesses Laauli Leuatea and Apulu Lance responded that they did not know about the transfer or reallocation of shares until they were served with the claim. Their complaint is against the transfer of shares which was never discussed or agreed upon by the board and was not in retaliation to the civil claim by the defendant.

Forgery: s 194(2)

39. The prosecution case is that the Notice of Resolution (“Resolution”) is a false document:
    1. The contents are false because there was no board meeting on 29 May 2013;
    2. Martin Schwalger’s signature on the Resolution was forged;
    100. The Notice of Resolution was made by the defendant, Peseta Vaifou.

Was there a board meeting on 29 May 2013?

40. The evidence by the witnesses for the prosecution and those of the defense regarding a board meeting on 29 May 2013 are poles apart. The prosecution witnesses – Laauli, Apulu and Martin said there was no board meeting but the defendant Peseta and his son Danny said there was a board meeting.
41. Maiava in her evidence said she was told by the defendant of a board meeting in relation to Danny’s resignation as in para [1] of the Resolution but to her knowledge the transfer or reallocation of shares was not a result of a board meeting but from the meeting between the defendant and Laauli in her office.
42. If Peseta in his evidence said that all the shareholders were present and all three matters – resignation of Danny Schwenke, the transfer of shares to him and signatories to the account were all discussed in the same board meeting and agreed to by the board then why was the issue of signatories not included in the Resolution letter.
43. If the transfer or reallocation of shares to include the defendant which would completely cut off Apulu was agreed to by the board (including Apulu Lance), then Apulu should have also signed the Resolution letter to reflect that he had agreed to the transfer or reallocation of shares to just Peseta and Martin. Apulu Lance is the one most affected with the transfer and reallocation of shares. Laauli and Martin benefit from the transfer of shares as in the Resolution however their evidence is that there was no board meeting where such transfer was discussed and agreed upon.
44. Apulu Lance said if there was a board meeting why would, he agree to the reallocation of shares to 50% to the defendant and 50% to Martin Schwalger whereby he is completely cut off as a shareholder who was holding 32.5%.
45. I accept the evidence by the prosecution witnesses Laauli Leuatea, Apulu Lance and Martin Schwalger that there was no meeting of the board on 29 May 2013 or on any other day whereby the issues especially that of the shares as reflected on the Resolution dated 13 June 2013 was discussed.

Who ‘made’ the Notice of Resolution?

46. The evidence of Laauli and Apulu is they did not know of the Resolution letter until they were served with the defendant’s civil claim sometime in September – October 2015. Apulu said he checked with the Ministry of Commerce Industry and Labour (MCIL) and saw that the transfer of shares and inclusion of the defendant as a 50% shareholder had been registered. He tried to get hold of the company lawyer, Maiava Visekota but to no avail. Martin Schwalger’s evidence is that he was only made aware of the Resolution letter and its content when Laauli and Peseta called him. These witnesses said they assumed the Resolution letter was made by the defendant as his name appeared on the letter and the transfer of shares to him as a shareholder had been registered and that Martin Schwalger claims he never signed such letter.
47. Maiava Visekota’s evidence is that she prepared the Resolution letter (EXH P1) on instructions of the defendant, Peseta Vaifou. She said she does not attend any of LPA’s board meetings. She was told by Peseta Vaifou of a board meeting on 29 May 2013 and of the resignation of Danny Schwalger at that meeting as reflected in para [1] of the Resolution letter. She confirmed that on instructions of Peseta she also prepared the Change of Directors letter dated 31 May 2013 (EXH D2) which records the resignation of Danny. She witnessed the signatures of both Peseta and Danny on this document. Maiava also prepared the letter to Westpac Bank dated 26 June 2013 (EXH P3) regarding the signatories to the company’s account to include the defendant as the main signatory but she said this document was not signed in front of her.
48. Both Peseta and his son Danny Schwenke confirmed that Maiava drafted the Resolution letter as instructed by Peseta.

Analysis:

49. The ‘act’ in s 194 is the act of ‘making’ the false document.
50. The prosecution submits that Maiava drafted the Resolutions on instructions of the defendant which the defendant signed and as such he made the Resolution letter.
51. The defense submits that the Resolution was ‘made’ by the company lawyer, Maiava Visekota not the defendant, Peseta Vaifou.
52. In most of the cases or authorities on forgery the accused plays an active role in the forgery, that is, physically involved in the making of the false document by either affixing their signatures to it or they signed other peoples’ names^[9] or reproducing documents^[10].
53. In Police v Toluono^[11] (pre- Crimes Act 2013) the defendant instructed a lawyer who drafted the land transfer documents which were signed by someone else who purported to be the actual persons whose signatures she signed. The lawyer had no knowledge that the person who signed the land deeds is not the ‘actual’ person who owns the land. The person who signed the document was found guilty of forgery. The defendant was found guilty on the charge of forgery as party not as principal. The lawyer who drafted the land transfers was not the person who ‘made’ the document but the person who signed was the person who ‘made’ the document.
54. The evidence is the defendant attended to the lawyer’s office, he instructed her to draft the Notice of Resolution which he signed and he also paid the lawyers invoice (EXH P5) for those services. I find that the defendant Peseta Vaifou ‘made’ the Notice of Resolution.

The signature of Martin Schwalger

55. The prosecution alleges that Martin Schwalger’s signature on the Resolution letter was forged by the defendant.
56. Martin claims his signature on the Resolution letter is forged. He said he did not sign the Notice of Resolution but the letter to the Westpac Bank regarding the signatories to LPA’s bank account. He disputes the signature on the Resolution as his, saying it was different from his usual signature. The signature on the Resolution is shortened and the last name ‘Schwalger’ is missing the letter ‘c’.
57. The company lawyer/agent Maiava Visekota gave evidence that she not only prepared the Reslution but that both Peseta Vaifou and Martin Schwalger signed in front of her in her office although at different dates. Peseta signed on 13 June 2013 and Martin signed on 14 June 2013 with Peseta present. She said that she had only met Martin twice, the first when he came to her office with the required documents to have LPA registered and the second when he came in to sign the Resolution. Her evidence is that Martin came in signed and left. He did not ask any questions at all and she assumed that he must have already been told of what he came in to sign. It is also Maiava’s evidence that she prepared the letter to the bank (EXH P3) which has Martin Schwalger the defendant and Apulu’s signatures but she said that letter was not signed in front of her.
58. Peseta gave evidence that he was present at Maiava’s office when Martin signed the Resolution. He also said that Maiava prepared the letter to the bank (EXH P3) which Maiava confirmed was not signed in front of her. Peseta said the letter to the bank was signed at LPA office at Vaitele.
59. Apulu Lance evidence is that the company had only met twice as a board. The first meeting was on 21 January 2013 to set up LPA and the second meeting was June 2013 to discuss the signatories to LPA account where they agreed to have or include Peseta as the main signatory and the other two signatories to be Martin Schwalger and himself. He said Peseta brought the letter to the bank (EXH P3) at the LPA office at Vaitele and he signed it there. Apulu was asked as to who signs company resolutions and minutes, he said one or two shareholders/directors can sign.
60. The defense obtained an affidavit (EXH D3) from a forensic document examiner Ms Linda Morrell. Ms Morrell was called by the defense as an expert witness who gave evidence that she was only given copies of various documents (including Resolution and letter to Westpac Bank - EXH P3) with Martin Schwalger’s signature. At paragraph 17 of her affidavit she said that she could not give a definite opinion because she was not given any original documents with Martin’s signature to compare the signature on the copies with. She said at paragraph 20 of her affidavit that the signature on the Resolution ‘ ...may well be a genuine M SCHWALGER signature’.

Analysis:

61. Expert evidence is given to assist the judge or trier of facts by providing special knowledge that the ordinary person would not know but it is not to be accepted blindly and without question. It can be accepted or rejected by the trier of facts.^[12]
62. It is clear from the evidence that Martin signed a document which document he said is not the Notice of Resolution but the letter to the bank (EXH P3) regarding signatories to the company’s account. Maiava Visekota’s evidence is that she also prepared the letter to the bank but was not signed in front of her. Her evidence is consistent with the evidence of Apulu Lance and Peseta Vaifou that the letter was signed at the LPA office at Vaitele.
63. I must say that I find Martin Schwalger as a witness to be shifty and at times his evidence did not make sense at all and his responses to questions were incoherent.
64. I accept the evidence of Maiava Visekota that Martin Schwalger signed the Resolution in front of her. I also accept the evidence of Peseta Vaifou that he was present when Martin attended to Maiava’s office and signed in front of her. There is no implied collusion between Maiava and that of the defendant who instructed her to draft the Resolution regarding this piece of evidence. The expert’s evidence made the evidence of Maiava and Peseta more cogent.
65. The court finds that the shareholder Martin Schwalger signed the Resolution letter and he signed in front of the company lawyer Maiava Visekota at her office.
66. Martin and Apulu’s evidence is that one or two shareholders can sign the resolution. In this case Martin signed and he is a shareholder.

Is the Notice of Resolution a false document?

67. The learned authors of Adams on Criminal Law at CA255.03:

“A document will only be a forgery if it is not merely a false document, but one which is intended to be taken as being genuine, one which ‘tells a lie about itself’^[13] ........ A copy of a painting made and dealt with as a copy tells no lie about itself: R v Li [2008] NZSC 114; [2009] 1 NZLR 754. As William Young P noted in R v Walsh [2006] NZCA 140; [2007] 1 NZLR 738, the lie must be one or more of the types specified in the definition of ‘false document’, a definition which the Supreme Court noted in Walsh v R [2006] NZSC 111; [2007] 2 NZLR 109 at [9], is concerned with falsity of authorship, not falsity of content.”

68. The ‘lie’ must be one or more of the types under paras (a) – (e) specified in s 193 definition of false document. The words ‘purports to be made by’ underlines that a document is not a forgery merely because it contains false statements unless the document tells a lie about itself. It is the nature of the document not the substance that underlies a false document.^[14]
69. Under paras (a) - (d) the words ‘purports to be made by’ means the Resolution is ‘purported to be made by or authorized by or on behalf’ of someone else real or fictitious. Paragraph (e) captures document made in the name of a genuine person. The learned authors of Adams on Criminal Law at [CA255.02] made the following commentary on definition in paragraph (e):

“A defendant may make a document in his or her own name or have it made with his or her authority, with the intent that it will be accepted as having been made by another person of the same or similar name.”

70. The defendant, Peseta said he signed the Resolution letter. The evidence is he did not sign anyone’s name but his. The Resolution can’t be said to have been ‘purported to be made’ by Peseta because it was Peseta himself who signed his own name. This is the same with Martin Schwalger whom the court finds to have signed his own name. As to definition in para (e) there was no evidence of another person of the same or similar name as that of the defendant except the defendant himself.
71. The Resolution letter was made by the defendant which letter contains false statements as to a board meeting and its resolutions but such statements do not make the Resolution letter or document a forgery.
72. A document is not a forgery merely because it contains false statements. This is because forgery was not concerned with the contents but the nature of the document which must ‘tell a lie about itself’. The words ‘purports to be made by’ as in the definition of false document means that the document is about authorship and not content.

Use of forged document: s 195(1)(b)

73. CJ Elias in R v Li^[15] at para [21]:

“The introductory words of 257(1) require the user to know that the document is ‘forged’. Although the definition of ‘false document’ is not expressed in s 255 to apply to s 257 and there is no reference in s 257 to ‘false document’, the structure of the Act is that forgery is defined by s 256. These provisions necessarily read together. The meaning of ‘false document’ is carried into s 257 with the reference to ‘forged documents’ in s 257.”

(Section 255 (false document) is equivalent to our s 193, s 256 (forgery) is equivalent to our s 194 and section 257(using forged document) is equivalent to our s 195.))

74. The charge of using a forged document fails because the Notice of Resolution is not a false document under s 193.

Conclusion:

75. The Notice of Resolution is not a false document by any of the definitions under s 193 and as such is not a forged document under s 194(2).
76. The charge of using a forged document under s 195(1)(b) fails because the Notice of Resolution is not a forged document.
77. The prosecution failed to prove the charges of forgery and using a forged document beyond reasonable against the defendant, Peseta Vaifou.
78. The charges are therefore dismissed.
    

JUSTICE TUATAGALOA

^[1] R v Li [2009] 1 NZLR 754
^[2] See Adams on Criminal Law at CA255.02
^[3] R v Haskett [1975] 1 NZLR 30 (CA)
^[4] R v Webb (1924) NZLR 934
^[5] R v Sim [1987] 1 NZLR 356 (CA)
^[6] R v Walsh [2007] 2 NZLR 109 (SC)
^[7] Ibid at 2 above
^[8] CJ Elias in R v Li at para [20]
^[9] see R v Webb (1924) NZLR 934; R v Haskett [1975] 1 NZLR 30 (CA); R v McGrath [1987] 1 NZLR 748 (CA)
^[10] Walsh v R [2006] NZSC 111; (2006) 22 CRNZ 988; R v Li (ibid at 1)
^[11] Police v Toluono [2012] WSSC 12 (22 March 2012)
^[12] Jackson v Attorney General [2009] WSSC 122
^[13] R v Reardon [1964] NZCA 31; [1965] NZLR 473 (CA) at 476
^[14] R v Haskett [1975] 1 NZLR 30 (CA)
^[15] Ibid at [1]