Piper v R

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Floissac, C.J.,Byron, J.A.,Joseph, J.A.
• Judgment Date: 05 May 1992
• Neutral Citation: MS 1992 CA 1
• Docket Number: Criminal Appeal No. 1 of 1991
• Date: 05 May 1992

Piper

and

R

Floissac, C.J. Byron, J.A. Joseph, J.A.

Criminal Appeal No. 1 of 1991

Court of Appeal

Criminal law - Fraud — Montserrat Penal Code — Appeal against conviction and indictment for forgery and uttering of documents purported to be so called job letters contrary to s. 237(3), s. 241(1) and 243(1) of the Montserrat Penal Code No 12/83 — Intent to defraud — The manifest object was sufficient evidence of the appellant's intent to defraud — Locality of forgeries — Persons capable of being defrauded were outside the territory of Montserrat — R v. Treacy [1971] A.C. 737 applied — Actus reus and mens rea of crime committed locally — Whether they were justiciable in Montserrat — Liangsiriprasert v. U.S Gov't [1990] 2 ALL E.R. 866 applied - Conviction quashed on counts 4 & 5 as crimes were committed outside Montserrat — Appeal allowed to extent indicated above.

JUDGMENT OF THE COURT:

1 The appellant was indicted for forgery and uttering of documents purporting to be so-called job letters and for so doing with intent to defraud contrary to section 237(3), section 241(1) and section 243(1) of the Montserrat Penal Code No. 12 of 1983. The indictment contained five counts charging the appellant with:

• (i) forgery contrary to section 241(1) of a job letter purporting to have been executed by Edric Allen between the 4th and 8th November 1990,

• (ii) forgery contrary to section 241(1) of a job letter purporting to have been executed by Oeslyn Jemmotte between the 7th and 8 ^th November 1990,

• (iii) forgery contrary to section 237(3)(f) of a job letter purporting to have been executed between the 4th September 1990 and the 19th November, 1990 by Samuel Anthony Maloney (Permanent Secretary in the Ministry of Agriculture, Trade, Lands and Housing and head of the department of that Ministry),

• (iv) uttering contrary to section 243(1) of the forged job letter from Edric Allen and so doing on or about the 8th November 1990 and

• (v) uttering contrary to section 243(1) of the forged job letter from Oeslyn Jemmotte and so doing on or about the 8th November 1990.

2 The so-called job letters were all addressed to the U.S. Ambassador, Embassy or Consulate in Antigua and were in effect applications for gratuitous non-immigrant visas to the United States. They purported to be applications by Allen (on behalf of Warren Thomas), by Jemmotte (on behalf of Michelle Martin-Thomas) and by Maloney (on behalf of Rukhmin Sukchand). They purported to certify that the applicants (W. Thomas, M. Martin-Thomas and Sukchand) were employed by the signatories (Allen, Jemmotte and Maloney respectively) and wished to spend their vacation in the United States.

3 At the appellant's trial by jury presided over by Redhead, J., there was no dispute as to the falsity of the job letters. They purported to have been executed by Allen, Jemmotte and Maloney, all of whom testified uncontradictorily that they did not in fact execute or authorise the execution of the job letters attributed to them. Nor was there any dispute as to the uttering in Antigua of the two forged job letters which purported to have been executed by Allen and Jemmotte. These two job letters were uttered to Steve Wangsness (the Vice Consul at the American Embassy in Antigua) who testified uncontrovertibly that the job letters were delivered to him in Antigua but that he refused to grant visas to the applicants (W. Thomas and M. Martin-Thomas).

4 The issues at the trial were whether the appellant was the forger and utterer of the job letters, whether there was an intent to defraud within the meaning of the Penal Code and whether the utterings were local offences committed in Montserrat and were therefore justiciable locally.

5 In proof of the appellant's authorship of the job letters and of her intent to defraud, the prosecution relied principally on the expert opinion of a forensic document examiner (ASP Lionel Belle) and on certain items which the police found in the appellant's business premises. Belle testified that, in his opinion, the job letters were all typed on the appellant's typewriter and the forged signatures of Jemmotte, Maloney and Allen on the job letters were in the handwriting of the appellant. Police Officers testified and the appellant admitted that the police found in a drawer in the appellant's desk at least 5 blank letterheads of the Ministry of Agriculture, Trade, Lands and Housing and two typewritten job letters which were addressed to the U.S. Embassy, St. John's Antigua and one of which bore the forged signature of S.A. Maloney.

6 In the light of this and other evidence, on the 20th March 1991, the appellant was convicted on all counts and was sentenced to imprisonment with hard labour for a term of 2 years on counts 1, 2, 4, & 5 and for a term of 3 years on count 3 - the sentences being declared to be concurrent. The appellant has appealed against her convictions and sentences.

7 The appellant filed 15 grounds of appeal most of which overlap. The addresses of counsel however indicated that there are in fact only 5 issues in this appeal. The issues are (1) whether there was sufficient evidence of the appellant's intent to defraud (2) whether count 3 was an appropriate charge (3) whether the forgeries were local crimes justiciable locally (4) whether the utterings were local crimes justiciable locally and (5) whether the sentences were excessive.

(1) The intent to defraud

8 Section 235 of the Penal Code provides that:

“An intent to defraud is presumed to exist if it appears that at the time when the false document was made there was in existence a specific person, ascertained or unascertained, capable of being defrauded thereby, and this presumption is not rebutted by proof that the offender took or intended to take measures to prevent such persons from being defrauded in fact, nor by the fact that he had or thought he had a right to thing to be obtained by the false document.”

9 Section 235 therefore creates a statutory presumption of intent to defraud based solely on the fact that at the time of the forgery, there existed a specific person who was capable of being defrauded by the forgery. The statutory presumption applies to this case because at the time of the forgeries of the job letters, there were at least two persons capable of being defrauded thereby. Those persons were the United States Government (which is a political and legal entity) and the United States Ambassador or Vice Consul in Antigua.

10 The U.S. Government, the U.S. Ambassador and the U.S. Vice Consul are persons responsible for public duties. The intent to defraud such persons is specifically dealt with in Welham v. D.P.P. [1960] 1 ALL E.R. 805. There lord Radcliffe said at p.809:

“In my opinion, it is clear that, in connexion with this offence, the intent to defraud existed when the false document was brought into existence for no other purpose than that of deceiving a person responsible for a public duty into doing something that he would dot have done but for the deceit or not doing something that but for it he would have done.”

11 There can be no doubt that the object of the forged job letters was to induce the U.S. Government, the U.S. Ambassador or U.S. Vice Consul, in the discharge of a public duty, to grant non-immigrant visas which would not have been granted but for the forged job letters. That manifest object was sufficient evidence of the appellant's intent to defraud.

2) Count 3

12 Count 3 was a charge under section 237(3)(f) of the Penal Code which provides that:–

Any person who, with intent to defraud or deceive, forges any of the following documents shall be guilty of an offence and liable to imprisonment for seven years ………. (f) any document made or issued by the head of any department of the Government …..”

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