Westerhuis v Reginam - Judgment [1999] SBHC 104; HC-CC 144 of 1999 (7 October 1999)

HIGH COURT OF SOLOMON ISLANDS

HC-CC144 of 1999

GEORGE WESTERHUIS

-V-

REGINAM

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 144 of 1999

Hearing: 6 October 1999
Judgment: 7 October 1999

M. B. Samuel for Appellant
DPP for Respondent

MURIA CJ: The appellant had been charged before the Magistrates Court with the offences of concealing firearms and concealing ammunitions, contrary to section 22 of the Firearms and Ammunition Act. He had also been charged with a third offence namely, evasion of import duties of customs contrary to section 214(e) (now s.213(e)) of the Customs and Excise Act. The appellant pleaded Not Guilty to the three charges.

In his notice of appeal, the appellant raised five grounds namely:

1. That the learned Magistrate erred in not analysing the prosecution evidence before analysing the defence evidence.
   
2. That the learned Magistrate erred in convicting the Appellant in the absence of evidence that he was in control and possession of the goods between the 1st to the 31st May 1998.
   
3. That the learned Magistrate erred in convicting the Appellant on the absence of evidence that he was party to the alleged offence.
   
4. That the learned Magistrate had erred in convicting the Appellant on count 3 on the absence of evidence on fraudulent evasion.
   
5. That the said conviction could not be sustained in light of the evidence in Court.
   

The appellant's case is that he did not know of the firearms ammunitions and the bottles of Rum until he was already in Solomon Islands after 2 June 1998. When the goods were transferred to his yacht at Vella La Vella, he did not know that anything else other than the Rum was placed into his yacht. He only discovered the firearms and ammunitions when he was in Noro. Having discovered the firearms and ammunitions, the appellant off-loaded them and gave them to a Solomon Islander at Noro to keep them at an island for Steve Taker. Basically, the contention of Ms Samuel is that the appellant should not have been convicted as there is no evidence to support the charges.

In a case such as this, the principle to be applied is well settled. In this jurisdiction, the principle had been clearly stated in Gerea and Others -v- DPP [1984] SILR 161 where the Court held that an appellate Court can review decisions based on finding of facts and credibility of witnesses made by a trial judge but it can only reverse his decision f it is convinced that the trial judge was wrong. It is therefore fall on the appellant in this case to establish to the satisfaction of this Court that the decision of the learned Magistrate was wrong. It is not enough that this Court should have entertained doubts about the correctness of the decision of the Magistrates Court.

Turning to the grounds raised by Counsel for appellant, it would seem that the obvious question to ask is whether there was evidence before the learned Magistrate to establish the guilt of the appellant on the charges beyond a reasonable doubt. Obviously the contention of the appellant is that there was insufficient evidence or none at all.

The first ground of appeal complains that the learned Magistrate erred in not analysing the prosecution evidence first before dealing with the defence evidence. In so doing, says Counsel, the learned Magistrate had shifted the burden of proof to the defence. This argument can be disposed of very quickly as it has no merit. There is no rule of law or practice which demands that the trial judge should first analyse the prosecution evidence before that of the defence. The trial judge considers all evidence together as presented before the Court. Whichever order he does it would not matter as long as all the evidence before the Court are considered in order to determine whether the accused is or is not guilty. The burden of proof remains upon the prosecution. It does not shift simply because the trial judge happens to consider the evidence of the defence first. This ground is rejected.

In the second ground. Counsel for the appellant contended that there was no evidence before the Court to convict the appellant of concealing the goods as there was no evidence of control and possession of the goods on his part. I cannot accept that contention. The evidence clearly satisfied the learned Magistrate beyond reasonable doubt that the appellant had in his yacht the full load of Rum as well as the firearms and ammunitions. When the cartons of Rum were transferred to the appellant's yacht the appellant and his de facto wife were assisting in stacking them up properly in their yacht. There was evidence that when he reached Noro he off-loaded some of the cartons of Rum and firearms and ammunition to avoid being found out by the police or customs authorities. He deliberately did that. He told some of the local people to keep the items for Steve Taker. He even told the local people in the area to dispose off the firearms and ammunitions. Those are evidence of control, possession and concealment of the goods concerned. The learned Magistrate was entitled to come to the conclusion that he did and I see no reason to disturb his finding on this aspect of the case. This ground is also rejected.

The third ground of appeal should also be rejected. The evidence of PW4 and the appellant himself support the prosecution case that he was a party to the offence committed. It was rather unfortunate for him that he had to face the law himself without his other partner, Steve Taker who is out of the jurisdiction. That is of no concern to the Court. Ground 3 is rejected.

The fourth ground complains that the learned Magistrate erred in law in convicting the appellant on the offence of fraudulent evasion of duties of customs. When the appellant arrived at Noro and realised that he would be checked by the Police and Customs Authority, he off-loaded the cartons of Rum and firearms and ammunitions with some of the local people at Noro and asked them to take the drinks and keep them at their island and to dispose of the firearms and ammunitions. Why? The only logical answer is that he was trying to evade paying customs duties which by law any importer of goods into the country is obliged to pay. He was also trying to avoid being caught with the firearms and ammunitions in his possession. In my judgment this is evidence of fraudulent evasion of customs duties. The requirement of "dishonestly" is not necessary in establishing what is "fraudulent", since the appellant knew that he was doing something which he knew it was wrong, that is, avoiding being caught by the police and customs officials and evading paying customs duties. That is proof of the accused's dishonesty. This ground is also rejected.

The final ground simply contents that the convictions of the appellant could not be sustained. For the reasons mentioned above in relation to the other grounds of appeal, this ground must also fail.

All the grounds failed and the appeal is dismissed. The conviction on all three counts are affirmed.

Order: Appeal dismissed.

(GJB Muria)
CHIEF JUSTICE