B - Introducing or Uttering False

"Il legislatore non fece altro che constatare ‘una presunzione di fatto, la quale e' nel corso ordinnario delle cose: ma lascio' libera la dimostrazione "del contrario"248 .

If we accept this reasoning with regard to our law as, it is submitted, we might, the conclusion would be that the difference in the wording of Section 169 (l) as contrasted with that of Sections 164 and 165, merely alters the burden of proof: its effect being in the case of the counterfeiting or altering of foreign coins, to throw on the Prosecution the obligation of proving the requisite specific intention by further evidence that the mere inference from the criminal act itself, which in the case of counterfeiting or altering of coins being lawfully current in these Islands is ordinarily sufficient to prove it.

In conclusion, coins ‘lawfully current’ in these Islands means coins which are legal tender herein, that is, the currency of which is imposed by the law so that none can refuse to receive them in payment (within the amount prescribed in certain cases by the law) according to their established value. Section 352 (k) of the Criminal Code makes it a contravention "to refuse to "receive at the established value any money lawfully "current". As to which money is lawfully current, cfr. Order in Council of 13.11.1850 (Govt. Gazette, No. 1707 of 1851); Order in Council of 24.9.1886.

B - Introducing or Uttering False

The act of introducing or importing false coins into these Islands or of uttering or of putting off such coins, thus constituted an offence which is separate and distinct from the offence of falsifying coins. It may be that the importer or utterer is the forger himself: in which case, according to the principle laid down by H.M.'s Criminal Court in "Rex vs Simler et." (11.3.1921), which has since been followed in several other judgments, he would be guilty of two distinct offences, although for purposes of punishment section 19 (b) or (h) may, according to the circumstances, apply. The prevalent Italian doctrine and jurisprudence is in the sense that the forger of money is answerable for one offence even when he is at the same time the utterer of the false money249 . Where the person importing or putting off the coin is other than the forger, certain codes (e.g., the

248 Op. cit., art. 256, para 1267 249 Maino, op. cit., art. 256, para 1269; vide also Rex vs Riccardo Bonnici, 20/11/1912 and Rex vs Giuseppe Grech, 11/5/1912

French Code) consider him in all cases as an "accomplice" of the forger and deal with him accordingly250. Other Codes (e.g., the Italian Code of 1889) distinguished between the case in which the person importing or uttering or putting off the false coin acted in concert with the forger (art. 256 (2) of that Code) and the case in which he acted without such concert (art. 258); in the former case he was liable to the same punishment as the forger; in the latter, to a lesser punishment.

Our law does not either consider the importer or utterer as an accomplice of the forger, for it may well happen that there was no concert at all between them: or make any such express distinction as the Italian Code. It considers in all cases the person introducing or uttering or putting off the false coin as guilty of an independent offence and, generally, makes him liable to the same punishment as is prescribed against the forger. In fact, by Sections 167 and 168, any person who maliciously introduces or utters any counterfeit or debased gold or silver coin, or any counterfeit copper coins lawfully current in these Islands, is liable to the same punishment as is established against the person counterfeiting or debasing such gold or silver coins (Section 164), or counterfeiting such copper coins (Sect. 165) respectively; and by Section 169 (2), any person who maliciously puts off or introduces for the purpose of putting off any counterfeit or debased gold or silver coin not lawfully current in these Islands is liable to the punishment as is established in subsection (1) of that Section against the person who counterfeits or debases such coin for the purpose of putting them off in these Islands or elsewhere.

By these provisions the law intends to protect the public from the ultimate consummation of that criminal design towards which the falsification was the first step. Although the fact of the importation like the fact of the falsification is but a preparatory act towards another offence, i.e., that of uttering, it is right that the legislator should constitute it as a complete offence in itself:

"Giacchè essa equivale a trasportare nello stato la fabbricazione della moneta falsa. In verità la contraffazione o l’alterazione hanno bisogno di ulteriori azioni delittuose che si concretano nelle importazione, spendita o diffusione di monete falsificate, perchè sia conseguito lo scopo dei falsificatori e sia il fatto delittuoso della

250 Vide Chaveau-Helie, loc. cit., p. 172. para. 589

falsificazione portato alle ultime sue conseguenze col danno sicuro della pubblica e privata economia"251 .

The act, therefore, which constitutes the material element of the offence we are discussing is the introduction or the uttering or the putting off. There is "introduction” so soon as the false money is brought or imported into these Islands. To "put off" is to put into circulation in any number whatever and by whatever title, onerous or gratuitous. The word "utter" in the English text of our law stands for the word "spendere" in the old Italian text: in the Maltese text it is "jonfoq". In Italian jurisprudence it is not well settled what constitutes an actual "spendita", in other words, whether the offence is complete by the mere "tender" of the false coin or whether it is necessary that the coin so tendered should be "accepted" as good. Maino prefers the latter alternative; So does Lombardi who says: "La seconda ipotesi e’ costituita dalla spendere le monete per qualsiasi corrispetto e con qualsiasi modo facendole accettare per genuine da colui che viene ingannato. Il delitto e’ quindi consumato anche se "poco dopo l’ingannato si accorga dell’inganno e restituisce le false monete avendo in cambio le buone. Se, viceversa, manca l’inganno può aversi solo un delitto "tentato"252 .

In England, however, it was held that:

"It is an ‘uttering and putting off’ as well as a ‘tendering’ if the counterfeit coin is offered in payment, though it is refused by the person to whom it is offered"253 .

The formal element of the crime consists in the "malice" of the agent, i.e., in his knowledge of the falsity of the coin. Where the ‘actus reus' consists in the "importation" of false coins, Sections 167 and 168, which concern coin being legal tender in these Islands, do not expressly require, as does Section 169 (2) which concerns foreign coin, "the purpose of uttering or putting off". This notwithstanding, we repeat here what we have already submitted with reference to the offence of counterfeiting or altering where in Sections 164 and 165 and Section 169 (l) there is the same difference of wording: that the specific purpose is requisite in both cases254; only, with regard to coins lawfully

251 Lombardi, Dei delitti contro la Fede Pubblica, pg. 42 252 Op. cit., in Trattato di Diritto Penale, Vol. VII, pg. 44 253 Cfr. Archbold, op. cit., p. 1126 254 Vide Pincherle "Manuale di Diritto Penale", pg. 248