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R v Bennette & Pasio [2005] SBCA 1; CA-CRAC 002 of 2005 (4 August 2005)

SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an appeal against conviction. The original conviction for simple larceny was in the Western Magistrates’ Court on 20 February 2004. That conviction was the subject of an appeal to the High Court, which appeal was heard on 29 October 2004. Judgment in that matter was delivered on 1 February 2005. The question of sentence following that conviction is not a matter now before this court. Since the appeal is brought pursuant to section 22 (1) of the Court of Appeal Act [CAP 6] permissible grounds of appeal must raise a question or questions of law only.
   

IN THE MAGISTRATES’ COURT

2. In the magistrates’ court the matter proceeded as a contest. It began on 5 February 2004 and ended on 7 February 2004 with judgment being delivered on 9 February 2004. The present appellants were legally represented in the magistrates’ court. Evidence for the prosecution came from three police officer witnesses and one civilian government employee. Put simply, the evidence suggests that a government vehicle registered number G2579 was removed from the possession of the government into the possession of the two appellants. This was effected by the second appellant who, acting in accordance with the agreement of the first appellant, approached the police, requested the keys to the vehicle, fitted a number of spare parts to restore the vehicle to working order and removed the vehicle from its former resting place. The issue in the magistrates’ court was whether this was done with the permission of the person in charge or control of the vehicle or whether the present appellants believed that they had such permission. It was agreed that the tender process under which the two appellants had sought to buy the vehicle from government had not been completed, and that therefore the two appellants had not become owners of the vehicle. It was not even certain that these two appellants would be successful in their tender to purchase the vehicle. This was not the question. The question was whether in taking possession of the vehicle they were acting with the authority of the Director of Transport or were acting in the belief that they had the authority of the Director of Transport to take interim possession of the vehicle.
   
3. Evidence about the agreement to take possession came from the appellants after the magistrate had found that there was a prima facie case against them. The Director of Transport, another serving police officer, was not called to give evidence. There appears to have been an assumption made in the magistrates’ court that the Director of Transport did not have the authority to permit anyone to take possession or control of a motor vehicle belonging to the government. This is clear from the remarks of the magistrate at page 4 of his judgment where he says:-
   

“It is my humble view that the right of the Director of Transport is limited to the propriety rights in relation to vehicle or right to command, manage, control, occupy or exclude the vehicle, but not to a power to dispose it as he attempted or did with vehicle G2579.”

4. As has already been said, the Director of Transport did not give evidence in this trial, and there was no other evidence concerning the extent of his authority over vehicles under his charge, hence our conclusion that an assumption was made in the trial court. There are three points raised by this assumption which need to be considered. Firstly it must be said that the assumption of the authority of the Director of Transport was not supported by evidence. It cannot therefore be open to the trial magistrate to base any finding within the trial on that assumption. Secondly, as the statement suggests, the important issue is not so much whether the Director did indeed possess the power, but whether he purported to exercise such a power to hand over possession of the vehicle in the way that was alleged by the two appellants and thirdly the effect of whatever the Director of Transport may have done in this regard on the belief of the two appellants.
   
5. It is also clear from the judgement that the trial magistrate did not believe the evidence of the two appellants when they said that they had the permission of the Director of Transport to remove the vehicle. There were a number of reasons for this disbelief and the finding he made was a finding open to him, with which this court will not interfere. The question that does not seem to have been considered in the trial court is the effect of that finding. That the trial magistrate did not believe the appellants when they suggested that they had the permission of the person who was in control of the government vehicle in question is clear. That the opposite proposition was somehow proved by this finding is not so clear. Indeed the only evidence that could prove the absence of consent or to go towards showing that the belief of the appellants was not an honest belief, and therefore that their claim of right was not an honest claim, would come from the Director of Transport. It was with him that the two appellants said they negotiated this permission. They sought an adjournment in order that he be called to give evidence in their defence. That adjournment request was refused. His evidence, which in our view should have been part of the prosecution case in any event, was therefore never received by the court.
   

IN THE HIGH COURT

6. Two grounds of appeal against conviction were pressed in the High court. These grounds were that the conviction was against the weight of the evidence, and that there had been a misdirection on the application of the defence available under section 8 of the Penal Code.
   
7. Section 8 of the Penal Code provides that :-
   

“A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.”

8. It was contended before the High Court that the appellants in taking possession of this motor vehicle were exercising an honest claim of right and that this claim of right had not properly been taken into account in the trial court. That claim of right was based on the authority or purported authority of the Director of Transport. It appears from his judgment that the judge was not prepared to interfere with the finding of the trial magistrate that the appellants could not be believed in their assertion of what transpired between them and the Director of Transport. What, again, does not appear to have been considered by the learned judge at this point is the effect of such a finding.
   
9. When considering the question of a claim of right, the learned judge said at page 8 of his judgment that “the appellants did not assert any claim of right to the vehicle in the court below.” This is correct in the sense that the appellants did not assert any claim to ownership of the vehicle in the court below, but it is not correct when considered with regard to the permission that they gave evidence about which the court did not accept. It seems that the judge took the finding which was adverse in that regard to mean that in the absence of the appellants satisfying the court that they did indeed have permission, then the prosecution case that they did not have permission to remove the vehicle was thereby proved. This is an error of law.
   
10. In considering the powers of the Director of Transport in the High Court, where there was again no evidence before the court about those powers, the judge observed:
    

“the appellants knew that the vehicle was owned by government. Supt. Koto was a police officer and a servant of the government. As a servant, he merely had custody of the vehicle for police duties. The legal possession of the vehicle remained with the government. Only the government through the Ministry of Infrastructure and Development could grant consent to the appellants to take and remove the vehicle to Munda. In this case, Supt. Koto had not yet written to the Ministry of Infrastructure and Development about the interest of Appellants in the vehicle when he permitted the appellants to take the vehicle to Munda.” (emphasis added)

11. It is our view that this is the very crux of the matter. Whilst the evidence from Supt. Koto was not available to the court, it was the suggestion of the appellants that indeed Supt. Koto had given them permission to do what they did. Whether the officer had that authority may well be questioned, but based on his apparent authority the two appellants indeed presented the court below with a defence based on an honest claim of right.
    
12. It is correct to say that the appellants at some stage appear to have gone beyond that which they maintained they had permission for. The original permission to take possession of the vehicle that they contended was given to them was based on the real fear that if not moved the vehicle would further deteriorate either through weather or through theft from the vehicle. That permission did not it seems extend to personal use of the vehicle. There was no evidence about personal use before the trial court, but it seems to be admitted that some time later, perhaps in November of the year the allegation arose, the two appellants changed the number plate of the vehicle. Whether the subsequent use of the vehicle later in the year amounted to a fraudulent conversion of the property is fortunately not an issue before this appellate court. The case was brought on the basis that no permission was given for anything and so it should be determined.
    

GROUNDS OF APPEAL

13. In this court the grounds of appeal were:-
    
    1. That the learned judge erred in law in respect of the interpretation of the defence of honest claim of right provided in section 8 of the Penal Code
    2. That the prosecution had failed to prove all the elements of the offence of simple larceny
    3. As a result of the said errors, the learned judge erred in upholding the conviction entered.
       
14. Ground one has been considered above and we find that the learned judge did indeed misinterpret the defence of honest claim of right. It appears from the judgment that the judge considered that the defence was not open to the appellants because, in his view, the person from whom the appellants said they obtained there authority was not a person entitled in any event to give that authority. Whether this, in fact, was the case should not be the question. The question, in our view, should have been that given the circumstances could these two appellants have concluded that they had the permission they needed to take possession of the vehicle pending final disposal. This question was never asked by either the trial magistrate of the judge and in the event there was a misdirection.
    
15. Ground two has also been referred to above. There was no evidence before the court at first instance from the Director of Transport either of the actual limits to his authority or the extent of his permission, if any, given to the appellants. The trial magistrates did not believe that any permission had been given. That may well be a reasonable finding, when taking into account the evidence from two of the police witnesses that one of the appellants said that they had won the vehicle in a government tender process. But where is the evidence that the owner of the vehicle had not given permission to these two to take possession of the vehicle for the purpose described? That is the basis of a charge of larceny, taking without the consent of the owner, and of that element of the offence there is no evidence before the court. There is evidence that the vehicle belonged to the government, but that is not in issue. It is possession that is in issue, not ownership. The person who is in day to day control of the vehicle, and this seems to be the Director of Transport, is the person who could give evidence about permission or the lack of it, and there was no evidence before the court of that matter. No doubt this came about as a result of the generally held belief that even if that officer did give permission, he should not have done so, and so any permission he may have given was invalid. But that is not evidence capable of supporting a charge of larceny. That is an error of law.
    

CONCLUSIONS

16. In the event the appeal against conviction is allowed. There was a misdirection as to the proper application of the defence of claim of right. There was a further error of law in that not all the elements of the offence of larceny were made out in the trial court. These appellants have served and completed the sentence of imprisonment imposed on them and have been released. This court has not been asked to consider whether this matter should be sent back for retrial, probably for that reason. A verdict of acquittal is therefore entered in respect of each appellant.