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Maetia v Reginam [1994] SBCA 8; CA-CRAC 002 of 1994 (21 October 1994)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS
Criminal Jurisdiction

Crim.App. Case No. 2 of 1994

BETWEEN:

JOHN BARE MAETIA
Appellant

AND:

REGINAM
Respondent

Honiara, 20, 21 October 1994

K. Milte for Appellant
F. Mwanesalua for Respondent

LOS, J.A.: The appellant was convicted of five offences under the Customs and Excise Act (Cap 58) (the Act) and fined a total of $3,400. The offences ranged from bringing of goods prohibited for export and putting of same on an aircraft without clearance, hence an attempt to avoid the provisions of the Act. Because the attempted export involved mostly birds the issue before the High Court and now before the Court of Appeal is whether birds are prohibited goods under the Act.

The appellant has given the legislative history of the control over the animals and birds in the Solomon Islands but for the present appeal the issue is whether the ministerial order dated 15 June 1992 contained in the Legal Notice No. 78 is ultra vires the provisions of the Act. By this order paragraph one of the third schedule of the Act was amended by adding a new paragraph (paragraph c). The new paragraph added to the list of prohibited exports, namely

"any wild or domesticated bird, reptile or insect or any egg of any such bird or reptile is prohibited from being exported from the Solomon Islands"

The minister responsible under the Act is authorized to issue any order under s. 37(2) of the Act which says

"(2) The minister may, from time to time, by order, amend the said third schedule"

The appellant argues however that such power does not extend to making of any order prohibiting export of birds because there is no mention of birds in s. 37 (1) of the Act which says

"(1) the goods, particulars of which are set out in the third schedule are prohibited or restricted from being exported or the case may be, save as thereby excepted"

The resolution of the issue therefore depends on the definition of "goods" in sub-section(1). Section 2 of the Act defines goods as including "all kinds of goods, wares and merchandise and livestock." References have been made to the Oxford definitions of "animals" and "livestock" to see if these definitions might include birds. But they are not helpful. The counsel for appellant has also relied on a tool of statutory interpretation expressio unius exclusio alterius to submit that because the definition of goods specifically enumerates certain things and not birds, the Act specifically excludes any prohibition of exporting birds. I think with respect the maxim is helpful but it may inhibit expansion of thoughts and may obscure the purpose and a legislative scheme. There are countless authorities in England and elsewhere, one of which is Dean -v- Wiesingrund (1955) 2 All ER 432 referred to by the Chief Justice in his decision which is subject of this appeal. It is desirable in my view to take a purposive approach to the interpretation of the Act here. In the preamble of the Constitution of the Solomon Islands, the people of the Solomon Islands declare that all

"(b) the natural resources of our country are vested in the people and the government of Solomon Islands."

Hence in the supreme law of the land therefore there is the strong aspiration that there must be territorial control over the resources including birds. I would imagine various Acts would have been passed to implement the aspirations by creating machinery to control the utilisation of the resources including sales internally or internationally. I consider the custom and Excise Act is one of those Acts. Its general aim is

"to provide for imposition, collection and management of customs and excise duties, the licensing and control of ware houses and of premises for the manufacture of certain goods, the regulation and control and prohibition of imports and exports and for matters incidental thereto and connected therewith"

Section 2 of the Act defines "goods" as

"goods includes all kinds of goods wares, merchandise and livestock"

I consider therefore the definition of "goods" is wide and flexible. Thus when read together with the preamble of the constitution and the general aim of the Act the definition of "goods" must include "birds". Other interpretation would in my view result in absurdity when the Country can control export of many forms of goods including livestock but not birds. That is particularly so where, as here, there is a commercial element in the exportation; in such a situation, the term merchandise may more appropriately apply to the birds.

I have directed my mind to another aid to interpretation of statutes especially penal statutes. This rule of interpretation says where a meaning of a statute is ambiguous or at least it is susceptible to other meaning, the court must accept the meaning more favourable to the person who is affected. In the present appeal the person most affected is the appellant. With respect I do not see any ambiguity involved here and therefore, there is no need for the application of this rule. Given the context in which the Act was passed, that is, at the time birds could not be exported without a permit, the legislature must have known the state of the law and therefore this court must give fair and liberal meaning of the word "goods" to attain the object of the Act. Such an interpretation is not unknown in Solomon Islands, see R -v- Kauwai [1980-1981] SILR 108 for example.

I am therefore of the view that the learned Chief Justice was not in error when he interpreted the meaning of the goods to include birds and therefore the ministerial order was intra vires. I would therefore dismiss the appeal and confirm the conviction and sentences.

LOS, J.A.
COURT OF APPEAL OF SOLOMON ISLANDS