Bartlett v Regina [2011] SBCA 25; CA-CRAC 26 of 2011 (25 November 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL
NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Justice Chetwynd)
COURT FILE NUMBER:	Criminal Appeal Case No. 26 of 2011 (On Appeal from High Court Criminal Case No. 326 of 2005)
DATE OF HEARING:	14th November 2011
DATE OF JUDGMENT:	25 November 2011
THE COURT:	Sir Robin Auld, President
	Sir John Hansen, JA
	Justice Gordon Ward, JA
PARTIES:	ALEX BARTLETT - Appellant
	-V-
	REGINA - Respondent
ADVOCATES:
Appellant:	R Cavanagh and B Hiele
Respondent:	R Barry and A Kelesi
KEY WORDS:	S.5 Arms & Ammunition Act; S.10 Penal Code
	Strict liability
EX TEMPORE/RESERVED	Reserved
ALLOWED/DISMISSED:	ALLOWED
Pages:	7

JUDGMENT OF THE COURT

Introduction

[1] Following the trial before Chetwynd J the Appellant was convicted of possession of Firearm without a licence and possession of ammunition without a licence, both contrary to s.5 of the Firearms and Ammunitions Act. He was sentenced to one month imprisonment on each count concurrent.

Background

[2] On the 2nd of September 2004 members of the participating Police Force and the Royal Solomon Islands Police Force executed a Search Warrant on residential premises in Lengakiki of the Appellant. The appellant and his wife were at home. The appellant opened the door and identified himself to the police. He was cautioned and arrested and then taken into a master bedroom. The appellant opened a wardrobe door and stated he had a gun located in there. The police located a Remington 870 Pump Action shot-gun and 73 shotgun shells. Mrs. Bartlett handed to the police a Firearms licence number 11829. The appellant was a signatory to the Townsville Peace Agreement in his capacity as Secretary General of the Malaita Eagle Force.

[3] The indictment was dated the 9th of August 2005 but there was an unfortunate delay until trial which commenced on the 22nd of August 2011.

[4] The relevant statutory provisions are:-

Penalty for purchasing, etc., Firearms or Ammunition without a Firearm Licence.

5 (1) Subject to the provisions of this Act, no person shall purchase, acquire or have in his possession any Firearms or Ammunition unless he holds Firearm Licence in force at the time.

(2) If any person –

(a) purchases, acquires, or has in his possession any firearm or ammunition without holding a firearm licence in force at the time, or otherwise than as authorised by such licence, or, in the case of ammunition, in quantities in excess of those so authorized:.............

Mistake of fact

10. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or admission to any greater extent than that the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the expressed or implied provisions of the law relating to the subject.

[5] At trial the possession of the gun and ammunition was admitted. The appellant advanced a defence of honest belief afforded to him by s.10 of the Penal Code. His defence was that he held a firearms licence valid for 12 years and was, therefore, legally in possession of a gun and ammunition. Evidence was adduced by both the prosecution and defence in relation to the Firearms Licence and the appellant's honest belief in its validity. Given our ultimate conclusion on this appeal, it is not appropriate to say anything further in relation to that evidence.

[6] Following the conclusion of the evidence and the receipt of submissions, the judge requested additional submissions from the Crown and Defence on whether or not s.5 created an offence of strict liability.

[7] Both parties submitted that there was nothing in s.5 of the Firearms Act, or the Act generally, that explicitly or impliedly repealed s.10 of the Penal Code thus removing the offence of honest mistake. The Crown went further and pointed to a line of English Authority that held such possession offences were offences of strict liability but pointed to the fact that those cases dealt only with the question of possession. Counsel also pointed out that the defence of honest and reasonable mistake was not available under the relevant legislation and the Common Law of England has not embraced such a defence.

The High Court Decision

[8] In his decision the Judge relied on parts of an earlier decision of the High Court of the Solomon Islands R v Wong Chee Kwee and others (1983) SILR 78. He relied on s.3 Penal Code as the basis for his consideration of the line of English Cases dealing with common law possession referred to by Mr Barry in his submissions to the High Court. He made no reference to Gammon the case he had specifically asked Counsel to make submissions on. He concluded on the basis of those authorities that s.5 was an offence of strict liability and the appellant could not avail himself of the defence afforded by s.10 of the Penal Code.

Submissions on Appeal

[9] The submissions from both the Appellant and the Respondent were in agreement to the effect that the judge was in error in finding s.5 was an offence of strict liability. We are indebted to Counsel for the quality of those submissions.

[10] Essentially both counsels were in agreement that it was a matter of statutory interpretation and there was no need to consider the English Common Law Authority relied on by the judge. They submitted the judge had misinterpreted the decision in R v Wong which in fact supported the proposition that s.10 defence was generally available, unless explicitly or impliedly negatived. Both Counsels referred to Australian cases from States that had legislative provisions the same, or very similar, to that of s.10 as persuasive of the proposition that this was not an offence of strict liability.

[11] Mr Cavanagh argued that if we allow the appeal it should not be sent back for retrial because of the very considerable delays in this matter. In such circumstances he submitted it would be unfair to the appellant to face trial again. However, Mr Barry argued that this was a serious offence, committed by a prominent citizen and the Crown had never had the opportunity to have their case fairly and properly considered. He submitted it was in the public interest for the matter to be readmitted for re-trial.

Discussion

[12] We consider this matter to be one of construction. Reference to the English common law was unnecessary. The critical question in this appeal is whether or not there is anything in s. 5, or the Firearms and Ammunition Act generally that expressly or impliedly excludes the operation of s.10.

[13] In our view considerable assistance can be derived from a correct interpretation of Wong and the ratio of that decision. At page 81 Chief Justice Daly stated; -

"In my judgment where there is a comprehensive code of Solomon Islands dealing with matters such as general rules as to criminal responsibility, even if there is no direct inconsistency, it is incumbent on the Court to apply that Code instead of relying on the common law rules on the basis that the common law rules are "inapplicable and inappropriate" in the circumstances of the Solomon Islands. Adapting what the Court said in the Ngena (ab.cit at p.6) it is the intention of the Constitution that the common law rule should "wither away" when the Solomon Islands legislature has legislated for Solomon Islands in relation to any subject. Parliament so legislated comprehensively in relation to the criminal law when it enacted the Penal Code. Thus I also find that the Penal Code is exclusive in relation to matters dealt with therein, including general laws as to criminal responsibility."

[14] Further at page 82 the learned Chief Justice found that s.10 applies generally to all offences. He also expressed some doubts at the same page whether the description of strict liability "was apt in the Solomon Islands."

[15] At page 84 the Chief Justice stated;

In the final analysis then, as so often with the law one comes back to an interpretation of the specific statutory provisions which are before the court. Decisions by other Courts on different provisions can be most useful in indicating lines of approach but cannot supply the full consideration of the exact words used by our own Parliament.

We concur in the submissions of counsel that the decision of Chief Justice Daly in Wong correctly sets out the proper approach to the question before the Court.

[16] Persuasive authority as to the construction of the second limb of Section 10 it can be found in the decision of the full court of the Supreme Court of Western Australia in Geraldton Fishermen's Cooperative Limited v Munro 1963 W.A.R.129.

[17] Finally, there is the decision in Anderson v Nystrom (1941) St.R.Qd. 56 which sets out the test for implied exclusion where Douglas J stated at page 65; -

In determining whether the implied provisions of the law exclude the operation of this rule, I think we must adopt the ordinary canons of construction which are applied to decide whether one Act impliedly excludes the provisions of another. Now a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together, in which case the maxim leges posteriors contraries abrogant applies. Unless two acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, and special Acts are not repealed by general Acts unless there is some express reference to the previous legislation or unless there is a necessary inconsistency in the two statutes standing together.

[18] Clearly, s.5 does not expressly exclude s.10. Nor in our view is it repugnant or inconsistent with s.10 so as to require an implied repeal of s. 10. We think Mr Barry was correct in his submission that the liability of offender "subject to the provisions of the Act" in s.5 is a reference to ss.36 and 51 of the Act. Both of those deal with questions of possession. S.36 presumes the occupier of a house is deemed to be in possession until a contrary is proved. S.51 deems that a person possessing a container containing firearms is deemed to be in possession until a contrary is proved. As he submitted this may very well amount to an exclusion of s.10, as the term 'until the contrary is proved" shifts the onus to the accused. But as he pointed out there are no provisions in the Act similar to ss. 36 and 51 relating to the licence element of s. 5 (2). Such portion of the section must stand alone and it is not subject to any of the provisions of the Act.

[19] There are number of sections in the Act that were usefully collected in paragraph 41 of Mr Barry's written submissions. Those sections used terms such as 'wilfully', 'fortunately', 'intentionally', 'knowingly', 'without knowledge', "consent or connivance', 'without reasonable excuse' etc. It could well be argued in relation to those sections that they require proof of various mental elements that the operation of s.10 is impliedly excluded. But there is nothing in s. 5(2) of the Act, whether read alone or in conjunction with the rest of the Act, that shows any intention on the part of the legislature to exclude the operation of s.10 of the Code in relation to the licence element of s.5.

[20] S. 5(2) and s.10 can stand together and there is no repugnancy or inconsistency. s.5(2) does not incorporate any of the terminology used in those later sections dealing with other subject matter where it is arguable that it expresses an intention on the part of the legislature to exclude the operation of s.10. The deeming provisions found in ss. 36 and 51 are clearly limited to possession and could be said to be a halfway house towards an offence of strict liability. But clearly that does not extend to the element of holding a firearms licence.

[21] To exclude the s.10 defence could lead to quite extraordinary results. As an example, if a person obtained a firearms licence and paid the relevant fee at the appropriate government office and it was later found that the authorising officer for the licence had not been properly empowered, then, on the basis of the judge's ruling such a person would have no defence under s.10. In our view it would need to be very clear, either explicitly or impliedly, that such a defence that could lead such extraordinary result was clearly excluded. In our view there is no room for the common rule gloss imposed by the learned judge.

[22] It follows that the appeal against conviction must be allowed. The s.10 defence is available to an accused person in relation to the licence element of s. 5. But in the main it appears possession elements are fully covered by ss. 36 and 51 and it is not appropriate for us to say anything further as that is not an issue on this appeal.

Retrial

[23] Mr Cavanagh argued strongly that in these circumstances there was considerable delay and it would be unfair and prejudicial to the appellant to face retrial. He pointed out that in relation to other alleged offending he had spent eighteen months in prison awaiting trial and the overall delay here was an in excess of six years. On the other hand Mr Barry pointed to the fact that this is serious offending and the Crown had had no opportunity to have its case properly tested. He said there was significant public interest in a retrial taking place.

[24] We agree with Mr Barry. In the circumstance the matter is remitted to the High Court for retrial in the light of this ruling.

Order

The Appeal is allowed and the Court directs that the matter be remitted to the High Court for a re-trial on the ruling of the Court of Appeal allowing the appeal

Sir Robin Auld
President

Sir John Hansen, JA
Member

Gordon Ward, JA