Shabani Hida @ Omari v. R., Crim. App. 475-D-68, 28/1/69, Hamlyn J.

Shabani Hida @ Omari v. R., Crim. App. 475-D-68, 28/1/69, Hamlyn J.

The appellant was convicted of forgery, c/s 333, Penal Code, (three counts) and of stealing by a person employed in the public service, c/s 265 and 270, Penal Code (three counts). The charges for forgery did not contain an allegation of a fraudulent intent.

Held: There is a note upon the record that the “particulars of offence” do not refer to any intent to defraud or deceive. That is perfectly correct, but I do not think that such omission necessarily invalidates the charge on these counts … now the definition of forgery is given in section 333 of the Penal Code thus:- “333. Forgery is the making of a false document with intent to defraud or to deceive”. And the appellant, in the particulars of offence, had before him the details set out thus: - “The person charged on the – day of – 1968 at Bereke Village ….. did forge a payment voucher No. – By writing total amount paid Shs. – purporting to be what in fact it is not”. The distinction here arises I think by the use of the expression “did forge” and that clearly refers back to section 333, which itself contains a requirement that there be one intent to deceive or defraud. That intent is (at it were) a “built-in requirement”, in other that the offence be forgery at all. The matter seems to be very similar to information filed for offences such as murder, where the section is stated and the particulars merely set out:-“AB on the – day of –in the – region murder CD”. There is no necessity to set out in the particulars of the offence that the act was committed “of malice aforethought” or that the act or omission was unlawful; these details are already contained in the definition of murder in section 196. Similarly in charges of forgery, once the word “forged” has been included in the particulars, it is unnecessary to include the intent, for that is already a constituent of forgery. While, as I say, I do not consider it necessary to include in the particulars the intent, I think it is desirable to do so, for the definition o forgery contains the alternative intent of “to defraud or deceive”. These intents of course differ and the accused should have the fullest information before him as to which particular intent is averred. But such omission is not in my view fatal to the proceedings, nor can I hold it be so in the instant case”. Appeal dismissed.