Police v Marsters [2002] CKHC 1; Cr 328.2002 (21 November 2002)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NOS. 327/02, 328/02

POLICE

v

SIMON MARSTERS

Snr Sergeant T Howard for Police
Mr Bracefield for Defendant

Date of Hearing: 19 and 21 November 2002
Date of Decision: 21 November 2002

DECISION OF GREIG CJ

Simon Marsters faces two charges that during a period of time earlier this year, he stole a tractor, the property of the Cook Islands Government and that he stole a key, also the property of the Cook Islands Government. Apart from the evidence of a police officer and the additional evidence of Lydia Sijp which I allowed to be given on the narrow point as to the relative authority of an Island Secretary, which Lydia Sijp is and the Council, the evidence for the Crown was by agreement provided in the form of written statements, some of them signed, some of them unsigned as to the factual matters in this case. Those included a statement unsigned by Lydia Sijp. On the other hand the defence called a number of witnesses, relatives of the accused but still persons among the small community on that island who were able to tell me first hand some of the things that had occurred. I got a strong impression from the evidence and perhaps particularly that of Mr Taepae Marsters that this community prefers matters to be dealt with and resolved on the island among the islanders. And it is perhaps regrettable that the underlying disputes in this case have not been so dealt with. As far as the tractor is concerned I think Mr Simon Marsters is to blame in that too because he seems to have failed to try to deal with the Island Council or the Island Secretary to achieve a settlement of his claims which are substantial. It will be convenient if I deal with first the matter of the key. The key is the key to the generator shed and the generator which provides the electricity to the island. The key is in the possession of the man who's in charge of the generator. At the relevant time that was Mr Korinako Marsters. By arrangement, he came to Rarotonga to accompany his partner and a sick child. The evidence on the part of the defence is that he asked Mr Simon Marsters if he would look after the generator while he was away, that was agreed to. A handwritten notice was prepared and was circulated among the community that notified the community that Mr Simon Marsters was to look after the generator.

The statement of Lydia Sijp is that she requested Mr Korinako Marsters to hand over the key to two new operators, he did not do so because he had already handed it over to Mr Simon Marsters. Mr Korinako Marsters denied that he had received that request but did say that as it happens Mrs Sijp was leaving on the boat to come back to Rarotonga, she said to him to hand over the key to Bob and Andrew, he said well we are on the boat, it's late and I have already handed it over to Simon.

It is also part of Ms Sijp's statement that she forwarded a notice to the defendant on the 28^th of May and on the 11^th of June 2002 asking him to hand over the keys to the Central Government representative.

There was produced to me a copy of the meeting of the Palmerston Island Council which was held on 12 June, that is to say a day after the day upon which Ms Sijp says that she handed the final, the last notice to Simon Marsters. That meeting arose in part because it seems the acting Island Secretary refused to take receipt of the monies payable for the electricity accounts. The meeting of the Council arranged for somebody else to collect that money and also to appoint Simon Marsters to continue the running of the island generator until Korinako Marsters returns and that was passed.

After that there was no request by anyone to Mr Marsters to hand over the key except on the complaint which was made to the Police. The Police raised the matter with the accused but of course they were not in authority to do anything about that.

A question was raised as to the relative authority of the Council and the Island Secretary. The question was not in my view clarified to a satisfactory extent by the evidence of Ms Sijp. She asserts that she was employed by Central Government, appointed by the Public Service Commission on contract, that she was responsible for all government servants and government services to Palmerston. She did not produce the contract with the Cook Islands Government. She did produce a performance agreement between the Mayor of Palmerston and herself as to the various matters which she undertakes to do such as to create and promote sustainable economic development to improve the living standard of the people of Palmerston, to facilitate and promote tourism marketing initiatives and so on. As I remarked, these are all beautifully worded matters which do not always seem to have much meaning.

The work of government on the outer islands is a subject matter of legislation and Palmerston Island has its own legislation; Palmerston Island Local Outer Island Local Government Act will also apply to it subject one assumes to the provisions of their own Act, particularly as the Outer Islands Act was passed in 1987 and the Palmerston Island one in 1993. That would seem to give precedent to that later Act.

In the Outer Island Act, there is a reference to an officer described as the Chief Administration Officer being the person appointed for each island by the Public Service Commissioner in accordance with the decision of Cabinet. That title is not being referred to, it needs proceedings and it does not referred to in the Palmerston Island Act. It is not an office which is referred to in the Public Service Act either. Whether Ms Sijp's office is the same as that, one does not know. The Palmerston Island Council does have certain authority and jurisdiction. It's functions is among other things to assist in the coordination of any activity relevant to the economic social development of Palmerston, that certainly must include the generator or generation of electricity and it is also to assist the Government of the Cook Islands in the good law and government of Palmerston.

I am not persuaded that the Council does not have authority, particularly in the absence of the Island Secretary and the reluctance and unwillingness of the acting Secretary to act in the matter to deal with this question of the generator.

In any event, the real question is whether Mr Simon Marsters did dishonestly and fraudulently take and keep that key to himself. The answer simply must be no, he was under the impression clearly that he was authorized by Mr Korinako Marsters and that authority was confirmed by the Island Councillor at a formal meeting. He was proved then at least in his own mind and with perfectly good reason that to believe that he was entitled to operate the generator and to keep the key. In any event it does not seem that he was ever asked afterwards, if he was asked at all, to return the key by anybody in authority. That charge must be dismissed and I do so.

The tractor is it seems the property of the Government of the Cook Islands. It is not clear exactly how it came to the island; there is reference to some funds from Canada in that regard. In or about 1996 the vehicle was in a damaged condition. The evidence is that it was passed over to Mr Simon Marsters to see if he could repair it. He accepted that responsibility and he worked on it. According to his invoice which was produced in Court, he worked for some 40 days on that and spent or obtained for value parts to the value in total of some $11,800. The tractor in the charge is valued at $12,000 so the amount of the repairs exceeds the value of the tractor.

Anyway Mr Simon Marsters was able to get the vehicle going. He retained possession of it, but provided its services with him driving so that the community could avail itself of the use of the tractor as they had before when it was working. It is used mainly for the transport of heavier items.

As I say this is sometime in 1996. The question of the tractor has clearly an on-going matter because there was produced to me a handwritten letter dated 5 November 1999 which Mr Marsters addressed to Jean Marsters Dean described as Chief Executive Officer. She I believe was a previous Island Secretary or executive officer on the island of Palmerston. It is addressed to Rima Manavaikai the police officer at Palmerston Island.

That letter made it clear that the accused was holding on to the tractor because he wanted to be paid what he termed $45,000 for the work that he had done on the tractor and the three years that he had had it under his care. He has now produced invoices about that as I have noted. There is some $15,000 for the cost of the repair of the tractor but then there are claims for his time in driving the tractor, servicing and then cleaning, storing it and the cost of diesel and oil over that period. The claim is now in the order of $82,000 and no one has suggested how that is to be paid.

The oral evidence in this case on behalf of the Crown came from Senior Sergeant Pouao who spoke to the accused on Palmerston in December last year. He was there because of a number of complaints in relation to Mr Marsters' conduct. Complaints which do not concern me or this Court at this time but there was also a complaint about the tractor and his continued retention of it. The Senior Sergeant advised the accused to pursue his claim in the civil court. He says he then took possession of the tractor and placed it in the custody of Edward Marsters the honorary constable on the island. When I asked the Senior Sergeant how the tractor was moved as he alleged into some bushes to remain under the control of the constable he seemed unsure of how that occurred. It is Mr Simon Marsters evidence however that the tractor was never moved that what happened was that he went with the Senior Sergeant to Rarotonga to answer and to be dealt with on the other matters of complaint. When he was leaving the island, he left the tractor with his mother under her control but he says that he allowed Edward Marsters to drive it while he was away.

Simon Marsters came to Rarotonga, the cases against him were all disposed of and he then returned to the island. He continued the possession and the driving of the vehicle as he had before.

Apart from the police interviews with the accused there seems to be no other evidence of any actual request for return of the tractor other than the general implication that some persons on the island wanted it back and were ready to make a complaint about it.

The workman is entitled to a lien on the chattel that he has worked upon for the payment of his proper costs, labour and expenses. So if you take a watch to a watchmaker, he is entitled to hang on to it until you pay for the repairs. Similarly if you take a car to the garage for repairs or for new tyres the garage man is entitled to hang on to the vehicle until you pay the bill. Mr Marsters was exercising this right in relation to the vehicle. That right is a right in possession and can be lost if possession is given up. I do not think that he gave up possession in allowing the vehicle to be used for the community over the last few years. In any event it seems that he remained in possession of it during the time that he was driving it and looking after it on the island. The fact that he may have allowed the police to take some form of possession of the tractor in December when he was taken away from the island does not again amount to a loss of possession because that was done on a basis which was incorrect.

I believe that Mr Simon Marsters was entitled in December to retain possession. He had given notice of his claim in 1999 and no payment had been made. The policeman seems to have suggested that his only claim was in the civil court, but that was not correct. In any event Mr Marsters retained and regained possession of that vehicle and in a way that seems to be perfectly proper in that the matters had not been settled and he had come back to Rarotonga.

Mr Marsters has kept that vehicle in his possession, he has done so with a right to do so and it cannot be said that he did so dishonestly with an intention amounting to intention to steal or to convert it to his own use. Again this charge has not been proved and must be dismissed.

There remain however the dispute which of course is not for me to decide at this stage. Clearly the matter of payment, some payment to Mr Marsters is necessary. He has made a claim of certain amounts for driving, for storage and so on which I would have thought was subject to some discussion, or mediation but ultimately agreement. I suggest strongly to Mr Marsters, to the Island Council, to the Island Secretary and to the Government of the Cook Islands and Palmerston that this is a matter that requires amicable settlement on the island among the islanders and I hope that can be done. The charges are dismissed.

CHIEF JUSTICE