Tiden v Tokavanamur [1967] PGSC 41; [1967-68] PNGLR 231 (9 October 1967)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 231 - Tiden v Tokavanamur-Topaparik

[1967-68] PNGLR 231

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TIDEN

V.

TOKAVANAMUR-TOPAPARIK

Rabaul

Frost J

9 October 1967

CRIMINAL LAW - Stealing - Bona fide claim of right - The Criminal Code, s. 22^*[ccc]¹ .

A claim of right under s. 22 of The Criminal Code need not be reasonable.

Clarkson v. Aspinall; Ex parte Aspinall, [1950] Q.S.R. 79 and R. v. Pollard, [1962] Q.W.N. 13, applied. R. v. Bernhard, [1938] 2 K.B. 264, at p. 270 and R. v. Gilson and Cohen (1944), 29 Cr.App.R. 174, at p. 180, referred to.

The appellant was convicted by the District Court at Rabaul of stealing coconuts the property of Vunalovo Plantation. The plantation had its northern boundary along the sea front and the land abutting the eastern boundary, which ran from the beach inland, was owned by the inhabitants of the nearby village of Vunalovo, one of whom was the appellant, and for some years there had been a continuing dispute between the owners of the plantation and the villagers concerning the position of the eastern boundary. At the time of hearing the boundary line which ran through an area planted with coconut trees on both sides was marked by five cement pegs driven at intervals along the boundary. The title to the land dated from German times, but pegs were removed during the Second World War, and after the war there was left only the peg on the beach and one other on a hill along the boundary. In 1961 three new pegs were placed in position by a qualified surveyor when he re-surveyed the property. In March 1967 Vunalovo Plantation labourers collected coconuts from an area within the eastern boundary and heaped them near their quarters on the plantation. The appellant loaded these coconuts into his truck and drove off with them to his home. The District Court did not consider the possible application of s. 22 of The Criminal Code to the appellant’s claim made before it that he was entitled to take the coconuts firstly because they were the fruit of trees he had planted and secondly because he and his people owned the land on which the trees were planted.

Held:

N1>(1)      The District Court had erred in law in failing to consider whether the appellant had established a bona fide claim of right within the meaning of s. 22 of the Code.

N1>(2)      Had the District Court considered this defence it could not reasonably have come to any other conclusion than that the appellant honestly believed that he had a right to take the coconuts or that there was a reasonable doubt, and the conviction must be quashed.

Appeal from District Court.

Anton Tokavanamur-Topaparik was convicted by the District Court at Rabaul upon a charge that on 8th March, 1967, at Vunalovo in New Britain he did steal 408 coconuts valued at $5.10 the property of Vunalovo Plantation. The evidence before the District Court is set out in the reasons for judgment.

Counsel:

Ley, for the appellant.

Flood, for the respondent.

Cur. adv. vult.

9 October 1967

FROST J:  This is an appeal against the appellant’s conviction by the District Court at Rabaul whereby he was found guilty upon a charge that on 8th March, 1967, at Vunalovo in New Britain he did steal 408 coconuts valued at $5.10 the property of Vunalovo Plantation, and ordered to pay a fine of $10.00 and in default of payment, one month’s imprisonment.

At the hearing Mr. Ley who appeared for the appellant applied for leave to amend the grounds of appeal and, there being no objection by Mr. Flood for the respondent, I granted the amendment. The grounds of appeal as amended and which were relied upon by Mr. Ley are:

N2>(i)       The magistrate was wrong in law in that he failed to consider whether the appellant had established a bona fide claim of right, and

N2>(ii)      That the appellant did establish a bona fide claim of right to the coconuts.

As appears from the proceedings of the District Court the facts were not really disputed. Vunalovo Plantation of about 42 acres has its northern boundary on the shores of Liguan Bay on the Gazelle Peninsula of New Britain. It is planted with coconuts and cocoa trees. The land abutting the eastern boundary, which runs from the beach inland, is owned by the inhabitants of the nearby village of Vunalovo one of whom is the appellant, and for some years there has been a continuing dispute between the owners of the plantation and the Vunalovo villagers concerning the position of the eastern boundary. The boundary line which runs through an area planted with coconut trees on both sides, is marked at present by five cement pegs driven at intervals along the boundary. The title dates from German times, but pegs were removed during the Second World War, and after the war there was left only the peg on the beach and one other on a hill along the boundary. In 1961 three new pegs were placed in position by Mr. Mennis, a qualified surveyor, when he surveyed the property.

When the time came to collect the coconuts early in March, 1967, the manager of the plantation, Mr. Cohen, with this dispute in mind, had Inspector Tiden come out to the plantation, and together with the Inspector he walked along the boundary and marked it out for his overseer, one Daheli. As they walked along the boundary through the trees, wooden stakes were put in at about 30 yard intervals, but apparently some at least of these wooden stakes were soon removed by the Vunalovo people.

Shortly afterwards Daheli had the plantation labourers collect the coconuts from the plantation land near the disputed part of the boundary, and they were placed in a heap in front of the labourers’ quarters on Vunalovo. However early on 8th March, 1967, the appellant came up in his truck and, with the assistance of the driver, loaded the coconuts into the truck and drove off with them to his home.

There was ample evidence that the coconuts had been originally collected from within the plantation boundary as surveyed in 1961. On 7th April, 1967, Daheli indicated to Inspector Tiden and Mr. Mennis the place where they were collected, and Mr. Mennis gave evidence that it was about 70 feet within the eastern boundary. But the point of this appeal lies in the circumstances in which the coconuts were taken. On 9th March, 1967, Inspector Tiden saw the appellant and asked him did he get the coconuts, and the appellant replied: “Yes I took them as they belonged to me.”

On the next day at the Kerevat Police Station the inspector had another interview with the appellant and again asked him why he took these coconuts. The following interview then took place:

The appellant said: “They belong to me I planted them.”

The inspector said: “Why did you plant these coconuts and what time did you plant them?” The accused said: “After the war.”

The inspector said: “Why did you plant the coconuts inside the boundaries of the plantation?” He said: “All the men who owned this land told me to plant them.”

The inspector said: “Did Mr. Cohen tell you that you could not take any more coconuts from the plantation as it belonged to him?” He said: “Yes he told me but I did not steal the coconuts.”

The inspector said: “You did steal the coconuts.” The appellant said: “No I did not steal the coconuts.”

The inspector said: “You were here when the Kiap surveyed the plantation.” He said: “Yes but the ground belongs to us.”

The inspector said: “This heap of coconuts you took from the plantation did not come from the trees that you planted. You took them from inside the plantation. You have broken the law by stealing these coconuts.” He said: “No all the coconuts belong to me. I did not steal them.”

That this was not a recent claim appeared from Mr. Cohen’s evidence that it had been claimed that some of the trees were planted by the natives.

The appellant then gave evidence as follows:

“The coconuts that were collected were taken near the second cement from the line of coconuts on my land. There are three cements. These cements indicate the boundary between the plantation and my land. The coconuts were collected from my land. They told me about these coconuts and I went and I got them back. When the Germans were here I was aware of this cement I knew that the coconuts belonged to me and I went and took them and took them back to my house.”

The appellant called as a witness his nephew, one Tomapu, who gave evidence as follows:

“I recall a day in March. On this day an employee of the master collected coconuts from our land. It was near the second new cement that had been planted. Originally when the Germans were here, we lived on this area. Germany departed and the Australians came. Australians finished and the war started. The war has finished and the Australians have returned. Now we remain on the land and it is ours. There is nothing on this land belonging to the master, we planted coconuts, and cocoa on this land. It belongs to us. Anton got the coconuts that belonged on our land. That is all.”

In answer to questions put by the magistrate, Tomapu said that the coconuts were collected in the vicinity of one of the new cement pegs which he claimed was on their ground. Indeed he claimed that the plantation quarters were on their ground. Then followed an interesting series of questions and answers:

N2>“Q.     The old cement who placed it in position? A. Germany.

N2>Q.       Where is it located? A. On top of a hill.

N2>Q.       The cement on the beach, who placed that? A. Germany.

N2>Q.       Do you know that the area has been re-surveyed since the war? A. Yes.

N2>Q.       You are aware that he completed a full survey of the boundary of the plantation and replaced cements that have been destroyed during the war? A. Yes.

N2>Q.       Do you know that the line runs straight from the beach up to the mark on the hill? A. Yes.

N2>Q.       Do you know that this new cement that you refer to is located on this straight line running from the top of the hill to the beach? A. Yes.

N2>Q.       You say you are aware of the boundary that runs in a straight line and that the plantation land is on one side and native land on the other and yet you claim that the coconuts and houses are situated on your land, Why? A. The employees of the plantation did not plant the coconuts or cocoa on this land, it is our land. We were surprised when the surveyor came and dug the ground and located the cement. This is why we want to go to court about this.”

In subsequent answers the witness made it clear that by “located” he meant placed in position which he thought had occurred about three years before.

The appellant’s defence thus was that he had planted the trees, from which the coconuts had fallen, at a time when there were two German pegs left on the ground, one on the beach and one on the hill. He believed that the land belonged to him and his people, and that he still had this belief even although the land was on the plantation side of the new pegs placed in position at the time of the survey in 1961. This claim that he was entitled to take the coconuts was twofold; the coconuts were the fruit of trees which he planted, and he and his people owned the land on which the trees were planted.

The learned magistrate gave reasons in writing for his decision in convicting the appellant. He considered that:

“as the boundary of the land had been surveyed by a licensed surveyor that the matter was not one in which land was in dispute and that I had jurisdiction to proceed and hear the information.

“Evidence was brought forward to indicate that the boundary was clearly defined and had been surveyed, and re-surveyed and that the defendant was aware of the position of the boundary. The labourer who collected the coconuts, indicated that all coconuts were collected from within the plantation boundary and were heaped for later collection, on plantation land.

“As a certificate of title had been issued by the Administration, and the licensed surveyor indicated in evidence that the boundary on the ground complied with this document, it was considered that no dispute to title existed and that all coconuts growing within the boundary were the rightful property of the plantation.”

It is now necessary to turn to the relevant provisions of The Criminal Code. Section 398 of The Criminal Code provides that any person who steals anything capable of being stolen is guilty of a crime and is liable if no other punishment is provided to imprisonment with hard labour for three years.

The basis of the appellant’s defence in this case was s. 22 of The Criminal Code which provides:

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

The effect of this provision is well established, and I am content to accept the law as laid down in two Queensland decisions. It was referred to by Philp J. in Clarkson v. Aspinall; Ex parte Aspinall[ccci]² as being the counterpart of the branch of the common law doctrine of mens rea,

“that (except in offences involving absolute liability) a defendant who establishes a bona fide claim of right is entitled to an acquittal; it applies only in criminal matters and applies in superior courts as well as before justices where they have jurisdiction; its reason is ethical and has nothing to do with the competence of any tribunal; to succeed the claim needs only to be honest; it need not be reasonable” (R. v. Bernhard[cccii]³).

In R. v. Pollard[ccciii]⁴ Gibbs J., with whom the other members of the Full Court of Queensland agreed, stated “that it is well settled that a claim of right sufficient to relieve a person of criminal responsibility need only be honest and need not be reasonable”: Clarkson v. Aspinall[ccciv]⁵; “the fact that it is wrong-headed does not matter”: R. v. Gilson and Cohen[cccv]⁶. In R. v. Bernhard[cccvi]⁷ the Court of Criminal Appeal said that a person has such a claim of right “if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact”.

It is useful to set out the following passage in Stephen’s History of The Criminal Law of England, vol. 3, p. 124, which was cited in R. v. Bernhard[cccvii]⁸:

“Fraud is inconsistent with a claim of right made in good faith to do the act complained of. A man who takes possession of property which he really believes to be his own does not take it fraudulently, however unfounded his claim may be. This, if not the only, is nearly the one case in which ignorance of the law affects the legal character of acts done under its influence.”

It is not to the point that the appellant had no right to take the coconuts if he honestly believed that he was entitled to take them, or if the learned magistrate had considered the matter and had a reasonable doubt whether he had such a belief. In either case the appellant should have been acquitted. See R. v. Pollard, per Gibbs J.[cccviii]⁹

As it is plain that the learned magistrate did not consider the appellant’s claim of right or the effect of s. 22 of The Criminal Code it follows that the first ground of appeal relied upon by Mr. Ley must succeed.

The next question is whether I should remit the case for rehearing or go further and quash the conviction. Mr. Ley submitted that any conclusion other than that the appellant did establish that he acted in the exercise in an honest claim of right and that he had no intention to defraud or that, had he considered it, the learned magistrate was left in reasonable doubt upon these matters, would have been unreasonable and against the weight of evidence.

In my opinion, on the facts of this case, that is, the planting of trees on land believed by the appellant at the time to belong to him and his people, it would not be entirely surprising for a claim to their fruit to be made in a more sophisticated society than the village life of the Gazelle Peninsula.

At the hearing it was not questioned that the appellant acted honestly in his claim that the coconuts belonged to him. The retention of his belief in the right to the land even after the subsequent survey seems to me, in that society, to be no more than “wrong-headed”. Thus I consider that had the learned magistrate considered this defence he could not reasonably have come to any other conclusion than that the appellant honestly believed that he had a right to take the coconuts or that there was a reasonable doubt, and I accordingly quash the conviction.

I should add that there was no appeal on the ground that the magistrate had no jurisdiction pursuant to s. 29 (iv)(d) of the District Courts Ordinance 1964 which provides that a court has no jurisdiction when the title to land is bona fide in dispute, nor was any argument directed to the point.

Appeal allowed. Conviction quashed.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: S. H. Johnson, Crown Solicitor.

[ccc]* Section 22 of The Criminal Code provides inter alia: “. . . a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud. . . .”

[ccci] [1950] Q.S.R. 79, at p. 89.

[cccii] [1938] 2 K.B. 264, at p. 270.

[ccciii][1962] Q.W.N. 13.

[ccciv][1950] Q.S.R. 79.

[cccv] (1944) 29 Cr.App.R. 174, at p. 180.

[cccvi][1938] 2 K.B., at p. 270.

[cccvii][1938] 2 K.B. at pp. 270, 271.

[cccviii][1962] Q.W.N., at p. 29.