IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 327 of 2005

REGINA

V

ALEX BARTLETT

(Naqiolevu, J)

Date of Hearing: 18th August 2008 	
Date of Ruling: 14 November 2008

For Crown: Ms M. Chalmers
For Accused: Ms. N. Manning/ Ms. C. Hemmer

RULING

NAQIOLEVU J.

1.	This is an application by Counsel for the defence of a No Case against his client who is charged with the offence of Attempt to Procure an Act contrary to Sections 381 of the Penal Code, and Arson contrary to Section 319 of the Penal Code.

CROWN CASE

2.	The crown called nine witnesses in support of it’s case against the accused.

3.	The crown in relation to the first count concede there is no case against the defendant with respect to the first count on the information.

4.	In relation to the second count the crown’s case is based on the fact that on or about the 25th of July 2000, the defendant did wilfully and unlawfully set fire to a number of buildings on land in the Tasahe, Independence Valley.

5.	The crown case is that the defendant procured a group of men to burn the houses built on his land at Tasahe and he is deemed to have taken part in committing the offence by virtue of Section 21 (d) of the Penal Code.

LAW – NO CASE SUBMISSION

6.	An application of a No Case to Answer is set out under the provision of Section 269 of the Criminal Procedure Code, S. 269

when the evidence of the witness for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecution or advocate for the prosecution or the defence may desire to submit, record finding of Not Guilty.

7.	The authority in this jurisdiction of a No Case Submission in R-v-Tome Na’asusu () where the Court of Appeal succinctly outline the principle, where it said.

"The test this is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt".

8.	The Court of Appeal further reiterated the Principle of Law in the case of R-v- Somae () where it stated, 

"there must be some evidence capable of establishing directly or inferentially every element of the offence charged beyond reasonable doubt." Underlining nine

ELEMENT OF OFFENCE

9.	The element of the offence of the Charge of Arson are:-

1.	the defendant set fire to the property

2.	the defendant did so wilfully

3.	the defendant set fire to the property unlawfully.

10.	The offence of Arson is not defined under the Penal Code, the court therefore would consider, as it is required to do the Common Law definition. Arson at Common Law is defined as the malicious or wilfully burning of a house or property owned by "another". It is not unlawful to burn one’s own property.

DEFENCE SUBMISSION

11.	The gist of the defence case is that the court must be satisfied that the crown evidence is capable of proof beyond reasonable doubt of the offences charged. If all that is established is a possibility that each element is satisfied that does not amount to a case to answer.

12.	The defence counsel further submit that if the court finds there is a case to answer, it should still make a finding of not guilty on the basis that a conviction would be unsafe.

CROWN SUBMISSION

13.	The crown in response submit in light of the defence submission that any verdict would be unsafe. The court need to consider the strength of the circumstantial evidence, and the circumstantial evidence whether in combination with direct evidence of Nakson Gumi or not, are capable of proof beyond reasonable doubt, or that the only rational inference that can be drawn from them is that it was the accused who ordered the burnings to be carried out.

14.	The crown submit that there is evidence which if accepted, is capable of proving every element of the offence of arson and procurement of the same by the accused.

15.	The crown further submit that the elements of the offence that the defendant procured Nakson Gumi and another to deliberately burn the house on the land in Tasahe wilfully, is fulfilled. The only element in dispute are that the burning is unlawful.

16.	Crown counsel further submit that something is unlawful unless it is authorized, justified, or excused by law. Burning a house constructed by and inhabited by another person does not become lawful simply because that house is on land that is owned by the defendant.

17.	Counsel submit clearly the victims gave evidence that they did not give permission to anyone to burn their houses, and they did not receive court order to vacate the land. Counsel maintain as no other issue of authorization, justification or excuse have been made on the evidence. There is evidence capable of proving beyond reasonable doubt that the burning was unlawful.

DEFENCE FURTHER SUBMISSIONS

18.	The defence submission in response is that what the crown asserts is not the Common Law position in relation to Arson, nor is it the law in Solomon Islands. In order for the burnings to be lawful in terms of Section 319 of the Penal Code, the Crown must prove beyond reasonable doubt that another person owned the house and did not consent to the destruction of the property.

19.	Counsel further submit in circumstances where the accused owned the land on which the houses were erected it is impossible to prove this element of unlawfulness because houses are regarded in law as fixtures and therefore form part of the land itself, "quicquid plantatur Solo, solo cedit".

20.	The Crown, counsel submit, has not called any evidence to prove ownership of the house by another who did not consent to the destruction, in fact the evidence is that the complainants did not own the land or have any interests in it, but rather the land was owned by Hatanga Ltd, a company owned in equal shares by the accused and his brother Roland Timo.

21.	Counsel submit that the onus is not on the defence to prove that the house were fixtures. It remains for the crown to prove the unlawful elements of the Charge of Arson. The crown has not called any evidence capable of proving beyond reasonable doubt that the property is that of "another".

22.	The defence in further response to the crown’s additional submission in which it alluded to the fact because the houses that were burnt were the property of Hatanga Ltd, the crown has proved beyond reasonable doubt that the houses were the property of another.

23.	The defence however submit the crown accepts, where company property is destroyed or damaged, the person who destroys or damaged the property will have a defence if the company consented to the Act.

24.	The Crown’s case against the accused is that he ordered the burnings. The accused is a Director of Hatanga Ltd, if accepted, which is what the crown ask the court to do, if follows inexorably that the accused and Hatanga Ltd consented to the clearing of property fixed to Hatanga Ltd land.

25.	Counsel submit the next issue to be determined is whether the crown can prove beyond reasonable doubt that Hatanga did not consent to the clearing of Hatanga property from the land in question. The Crown need to disprove such consent because its own cases directly suggest that Hatanga did consent.

26.	Counsel submit to the extent that it suggests that the accused alleged action can be completely separated from Hatanga. The Crown’s argument is fundamentally flawed, as it fails to take into account that because of the artificial nature of the corporate personality, a company can only be represented by, or act through, individual.

27.	The two main origins of a company are the directors and it’s members or shareholders and wide powers of management are conferred on directors and accordingly when directors exercised their powers this acts are regarded as acts of the company; see HL Bolton (Engineering) Co. Ltd –v- T.J. Grahams & Sons Ltd () where Lord Justice Denning explained:

"A company may in many ways be likened to a human being. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind of the company. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such…So here the intention of the company can be derived from the intention of its officers and agents."

See also TESCO Supermarket Ltds –v- Nattrass ()

28.	Counsel submit the accused was a Director and 50% Shareholder of Hatanga Ltd and as a Director of Hatanga the accused directs the mind and will of the company and controls what it does. If as a Director of Hatanga the accused considered it was in the best interest of the company that Hatanga land be cleared of fixtures that was a decision he was perfectly entitled to take on behalf of the company.

29.	In relation to the Crown’s submission that Napulai and Dawn had an interest in home amounting to overriding interest under Section 114 (g) of the Lands Titles Act due to mere occupation on Hatanga land which give rise to a legal interest or property right that could override those of the of the registered owner, disregard the fundamental principle importance of the principle of indefeasibility. 

30.	Counsel maintain that whilst Section 114 of the Land Titles Act created some limited exception to the principle where certain overriding interests may subsist, it does not create legal interest as the crown submissions seem to suggest.

31.	Counsel is of the view that contrary to the Crown’s submission that Dawn and Napulai mere occupancy automatically created an interest in Hatanga land capable of overriding that of the registered owner, ignored two key aspects of Section 114.

32.	The first is that the section provide that such interests "may" subsist, however the crown cannot prove that Dawn and Napulai have any right flowing from the mere fact of their occupation. To say mere occupation is proof of an interest in the land would be to reverse hundreds of years of English Property Law and completely undermines the system of land registration in the Solomon Islands. 

33.	The second point Counsel claim is the term "interest" is a specific term defined in the Lands Title Act, which described as follow:

"interest", where used in relation to land, includes, unless the context otherwise require, an estate, a lease, a profit an easement and a charge, and persons interested has a corresponding meaning. Underlining nine

34.	Counsel submit that what section 114 in fact does is to provide narrow exceptions that may exist to the principle of indefeasibility where someone with an "estate, lease, profit, easement or charge" is "in actual occupation of the land". The evidence in this case in incapable of proving to any standard and certainly not beyond reasonable doubt that any such overriding interest exist.

CONCLUSION

35.	The court has carefully considered the application of a No Case submission by the defence and the submission in response by the crown. The court clearly in considering the application must apply the test as set out by the Court of Appeal in the case of R-v-Somae (), which is the authority on the principle in this jurisdiction.

36.	The test that the court must apply is, has the crown produced any evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty of the offence charged. Further the test as reiterated by the Court of Appeal is R-v-Tome (), which clearly state,

There must be some evidence capable of establishing, whether directing or inferentially, "every element" of the offence charged beyond reasonable doubt (underlining nine)

37.	The charge against the accused is procuring another to commit the offence, of arson or the burning of the homes of another in the land owned by the company Hatanga Ltd, which the court accepts is owned by the accused and his brother.

38.	Clearly it is accepted by the crown that at Common Law it is "not unlawful" to burn ones property, and an exception to that is where such property is burned in order to defraud an insurance company. The crown cited the authority of () R-v-Appleyard and () R-v- Thomas John Denton in support of this proposition. 

39.	The court finds no evidence has been advanced that the burning of the land by the accused was for purposes other than to clear it for development.

40.	I am of the view that the real issue is whether the crown can prove beyond reasonable doubt that Hatanga Ltd which is owned by the accused did not consent to the clearing of Hatanga property, the land in question. Clearly the crown needs to disprove such consent, as its own case directly suggests that Hatanga Ltd did consent.

41.	The court is of the view that in order for Dawn and Napulai and indeed any other persons occupying the land (Hatanga Ltd) avail themselves of the exception to the rule of indefeasibility they must show not only that they are in "actual occupation" but also demonstrate that they have an overriding interest under the provisions of Section 114 (g) of the Land and Titles Act.

42.	The court is satisfied that no evidence has been advanced by the crown to prove beyond reasonable doubt that such overriding interest exist.

43.	The court having applied the test is not satisfied that "every element" of the offence have been proved either directly or inferentially beyond reasonable doubt by the crown, that the accused is guilty of the offence charged. R-v-Somae ().

44.	The land clearly is owned by the accused by virtue of his directorship of Hatanga Ltd, the registered owner of the land, the land is not that of "another" which is critical to the crown’s case. The crown has not satisfied the test that the arson was unlawful within the provision of the law.

45.	The court in considering the crown contention that it ought to exercise great caution in applying principle arising from case law developed in other jurisdiction, given it is common for person to occupy and build on land that is legally owned by another .

46.	The court is of the view and agree with defence counsel that the law makers in this country have adopted the Torrens Title System with the exception of indefeasibility under section 114 of the Land Titles Act. To accept and condone that in the urban fringe of Honiara and throughout the country it is common for people to squat and build on land owned by others, cannot be used to somehow argue that the land law in this country should be put aside and a new regime implemented by the court to condone this illegal activity.

47.	The court while conscious of the serious practical consequences the decision may have, given the common practice for persons to illegally occupy and build on land that is legally owned by another in this country. The courts must not shy away from its responsibility to apply the law to its full extent.

48.	The court adopt the principle of law as enunciated by the Court of Appeal in a recent decision related to "overriding interest" or the issue of a "right of way", under the provision of Section 114 of the Land and Titles Act, in the case of Shell-v-Kel (), where it said,

"We reach this conclusion with some regret. We are conscious of the serious practical consequences that it may have for the welfare of Honiara and Guadalcanal as a whole, which are necessarily dependent on deliveries of fuel through the pipeline. But our function is to apply the law, and even if we were at liberty not to do so, the consequence would soon be at least as far reaching. Rights of way would become capable of being successfully asserted by acquisitive prescription in all parts of the country against the Commissioner of Lands". Underlining nine

The court in all circumstances consider the accused has No Case to Answer in relation to the first count, as conceded by the crown and further No Case to answer in the second count and order he be Acquitted forthwith for both counts. 

THE COURT