Meiners v Barber [1994] SBCA 14; CA-CAC 3 & 8 of 1994 (4 November 1994)

IN THE SOLOMON ISLANDS COURT OF APPEAL
Civil Appeal Nos. 3 and 8 of 1994

BETWEEN:

WOLFGANG MEINERS
(Appellant) Respondent

AND:

RICHARD ANTHONY BARBER and WILLIAM DOUGLAS McCLUSKEY
(Respondents) Applicants

Before:
Connolly P.
Williams J.A.
LOS J .A.

Delivered the 4th day of November 1994

JUDGMENT OF THE COURT

On 17 June 1994 the appellant wolfgang Meiners lodged a private complaint with the Chief Magistrate at Honiara against the respondents Richard Anthony Barber and William Douglas McCluskey in the form of an affidavit sworn by Meiners that day.

He was questioned by the Chief Magistrate about the facts and separate charges were formulated charging each of the respondents with conspiracy to commit a felony contrary to s.376 of the Penal Code. The Particulars of the alleged offence in each case alleged a conspiracy between 1 April and 27 June 1991 among the two respondents and persons named Mark McCluskey, Bruce Elliott, James Molineux Bayley and Graham Dennis Miller to steal from Reef Pacific Trading Limited by a trick in that the Chief Justice was fraudulently induced to appoint the respondents as receivers of that company and that they unlawfully and by intimidation stole property from the custody of the company. The charges were signed by the Chief Magistrate and Meiners. It is contended that the date of 1 April was to have been amended to 1 January. This was not done.

The gist of each charge is conspiracy to steal by a trick, namely inducing the Chief Justice to appoint them receivers, that being the means by which they were able to obtain possession of the property in question. The order appointing them receivers was made by Ward C.J. on 25 March 1991, so the agreement to commit the felony of stealing must have been made before that date. It follows, of course that the date 1 April as the commencing date of the conspiracy would, without more, mean that the charge was unsustainable on its face. We are prepared to assume that in some fashion the date should have been amended to 1 January.

Criminal proceedings may, by virtue of s. 76 (1) of the Criminal Procedure Code, be instituted by a complaint to a Magistrate which may be made by “any person who believes from a reasonable and probable cause that an offence has been committed”: s. 76 (2) . The complaint may be made orally or in writing but if made orally it shall be reduced to writing by the Magistrate and in either case it shall be signed by the complainant and the Magistrate: s, 76 (3) . This requirement is subject to a proviso in the case of police or public officers which is immaterial for present purposes. The complaints comply with s. 76(3). Finally the Magistrate is to draw up or cause to be drawn up and sign a formal charge. This was done.

The case is plainly one of a complaint in writing, this being the affidavit sworn by the appellant on 17 June. There is no suggestion that when he was questioned by the Chief Magistrate about the facts, any facts were elicited which are not contained in the affidavit and it must be assumed that the Chief Magistrate merely asked questions to clarify his own understanding of the complaint. Indeed if additional facts had been elicited it would have been the duty of the Chief Magistrate to reduce them to writing in order to comply with 5.76(3).

On 30 September 1994 the charges were quashed on certiorari by Muria C.J. together with warrants of arrest which had issued in consequence. Thereupon the complainant on 3 October 1994 appealed to this Court against the order of Muria C.J. quashing the complaints and warrants. The appeal raises the simple question whether the appellant “believed” his allegation “from a reasonable and probable cause” within the meaning of s.76(2). “Reasonable and probable cause” must be based on the information known to the complainant at the “time of the prosecution: Commonwealth Life Assurance Society Ltd. v. Smith [1938] HCA 2; (1938) 59 C.L.R. 527 at p.542. What is required is reasonable grounds for honest belief of the existence of circumstances which, assuming them to be true, would lead to a probability of guilt: Hicks v Faulkner (1881) 8 Q.B.D. 167 at pp.171-2 per Hawkins J. I have shortened that classical statement of principle somewhat but it will suffice for present purposes.

The affidavit which contains the charge and which was placed before the Chief Magistrate contains 14 pages of allegations. It reveals that in 1987 the Meiners started a business known as Reef Trading Pty. Ltd. in Townsville. The business was that of fish merchants and the company had a turnover of about A$600,000 per annum. It would appear that it had expanded its operations to Gizo on the invitation of Solomon Islands Fisheries in 1988. Reef pacific Trading Limited (“Reef Pacific”) became the vehicle for these operations. In 1989 he made the acquaintance of James Molineux Bayley as a result of which a company in which Bayley was interested, Akeela Pty. Ltd. made payments of some $438,000 to the Honiara account of Reef Pacific for the financing of the fishing and processing project of that company. However, in July 1990 the complainant received a fax from Bayley informing him that Akeela Pty. Ltd did not wish to proceed with further financing and advising him to look for other avenues. By this time, according to the complaint, the company was facing severe financial problems. It was shortly after this that one Price, who was known to the Meiners, appeared on the scene, looking for seafood products and seeming to be aware of the situation between the Meiners and Bayley. The complainant visited Price in Sydney later that month and an arrangement was made for Reef Pacific to supply seafood on a “pre-purchase” basis, pursuant to which Price deposited some A$73,000 with Reef Pacific and on 6 November 1990 approximately 74 tonnes of seafood were shipped to Price in Sydney.

The affidavit deposes that on 20 January 1991 Price returned to Gizo with his solicitor, one Roberts, and discussions occurred between them and the Meiners and the Philips. As a result what is claimed to be a contract of 24 January 1991 was drawn up by Roberts. The purported agreement was expressed to be between Reef Pacific and a company by the name of Reef Pacific (Sydney) Pty. Ltd., the others also being parties. It provided for advances by Reef Pacific (Sydney) to Reef Pacific, the advances being repayable by 30 June 1991. Reef Pacific Sydney is described as the agent for the company. Fifty percent of the shareholding of the agent company was to be held by Reef Pacific.

The Meiners have made many allegations in relation to this alleged agreement, ranging from forgery of signatures to an agreement that it was to be treated as a draft only and not to be binding unless first submitted to the Meiners’ solicitors in Townsville. However its most serious defect, as demonstrated by the judgment of Williams J.A., in Civil appeal Case No.1 of 1994 is that Reef Pacific (Sydney) simply could not have been a party to the alleged agreement on 24 January 1991, not having been acquired by the Prices on that date but still lying in peaceful oblivion on a shelf in Sydney under its then name of Lawnbit Pty. Ltd. It follows that the Prices, whether they did or did not subsequently become shareholders and directors of that company could not on 24 January 1991 have caused it to enter into a contract with Reef Pacific. This simple fact however has never been properly appreciated and a positive welter of litigation has occurred beginning with an action brought on 11 November 1991 by Reef Pacific (Sydney) and the Prices against Reef Pacific, the Meiners and the Philips.

A great deal of this affidavit of complaint is taken up with the history of the so called contract with the Prices and Reef Pacific (Sydney) none of which appears to have any bearing upon the charge of conspiracy to steal which is brought against Barber and W.D. McCluskey. It is worthy of mention only because there is a suggestion that price may have had some contact with Bayley prior to his visit to Mrs. Meiners in Townsville in August 1990 when she formed the impression that he seemed to be well informed of the problems between the Meiners and Bayley and offered to help in his capacity as a solicitor. There is however nothing else in the affidavit to suggest that Bayley was in any way involved in the dealings between the prices or Reef Pacific (Sydney) with Reef Pacific and its shareholders and directors. Moreover the conspiracy which is charged does not name either of the Prices or Roberts. In the circumstances I cannot see that any of the material touching the so called contract of 24 January 1991 can be regarded as reasonable and probable cause for a belief in the conspiracy which is alleged.

The affidavit then deposes to the issue of a writ by Akeela Pty. Ltd. for breach of an agreement of 26 September 1989 and the issue of a summons seeking the appointment of receivers. This process was issued by a “newly established law firm in Honiara by name McCluskeys Solicitors”. The alleged conspirator Mark McCluskey appears to be a solicitor and to have been a member of that firm. An affidavit in support of the summons of 23 March 1991 was sworn by Bayley. It is claimed that Bayley falsely alleged that A$1.14 million had been paid to Reef Pacific and that Bayley made false allegations about the conduct of this company. He sought the appointment of Barber who signed a form of consent to be appointed official receiver and special manager. He was a member of the firm of Price Waterhouse in Brisbane as also was William Douglas McCluskey. Bruce Elliott is identified as an employee of Price Waterhouse and Miller appears to have acted as manager in the administration of the receivership at Gizo. The appointment was made during the early afternoon of 25 March 1991 and the affidavit of 17 June 1994, after setting out this short history, deposes to events during the administration by the receiver which, viewed from the standpoint of the Meiners, was highhanded and insensitive. However everything which was done occurred in the course of administration under the order of the Court. If the order appointing a receiver was not warranted and, indeed, if the facts were falsely or erroneously stated there is nothing in the affidavit which could engender an honest belief that Barber or W.D. McCluskey was aware of this prior to 25 March or, indeed, at any time and the receivers were finally discharged on 17 June 1991 with effect from 22 June, Wolfgang Meiners joining with others in executing an indemnity, although he says that he did so under duress.

On 30 September 1994 Muria C.J. granted certiorari to quash the charges against each of the respondents Barber and W. D. McCluskey. As has been seen the complaint discloses absolutely nothing which was within the knowledge of the complainant on 17 June 1994 to engender the slightest suspicion that an agreement had been made between 1 January and 27 June 1991 between Barber and McCluskey on the one hand and the other parties to the alleged conspiracy on the other of any sort, let alone to steal from Reef Pacific. The fact that Barber consented to be appointed obviously suggests that he was approached by or on behalf of Bayley, but that fact could not engender the necessary suspicion in the mind of any reasonable man. It is essential for the appointment of a receiver that his consent be obtained. Again, McCluskey and Barber are associated in the firm of Price Waterhouse but that fact is incapable by itself of providing reasonable and probable cause. The initiating document in this matter is the affidavit of complaint. It fails to disclose any cause, let alone a reasonable and probable cause, for the belief of the complainant that Barber or W.D. McCluskey was party to a conspiracy to steal from Reef Pacific by fraudulently inducing the Chief Justice to appoint Barber as receiver of the company. The affidavit disclosed on its face noncompliance with the requirements of s.76(2). The formal charges should never have been drawn up and signed and they and the warrants were rightly quashed on certiorari by Muria C.J.

The appeals must be dismissed with costs. There will be a certificate for overseas counsel.

BY THE COURT
(P.D. Connolly P.)