Regina v Bartlett [2011] SBHC 86; HCSI-CC 362 of 2005 (2 September 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Criminal Case No. 326 of 2005

REGINA

versus

ALEX BARTLETT

Mr Barry for the Crown
Mr Cade for the Defendant

Date of Hearing: 22nd, 23rd, 24th and 29th August 2011
Date of Judgment: 2nd September 2011

Judgment

1. Mr Bartlett is charged with two offences under the Firearms and Ammunitions Act [Cap. 80] ("the Act"). It is said he was in possession of a firearm (a Remington shotgun) and ammunition (for the shotgun) without a current licence. The facts are agreed and can be recited shortly. At seven in the morning on 2nd September 2004 police officers executed a search warrant at Mr Bartlett's home at Lengakiki. He informed them he had a gun in the wardrobe in his bedroom. The police located a Remington shotgun and 73 live shotgun shells. A couple of hours later Mrs Bartlett handed the police a Firearms Licence number 11829. The licence was produced in court and is marked as exhibit 1.

2. Mr Bartlett entered pleas of not guilty. This was on the basis that he had a licence and that he reasonably and honestly believed it to be valid for a period of 12 years, from the date of issue, the 20th November 1998, to 31st December 2010.

3. The offences are set out in the Firearms and Ammunitions Act, section 5, which provides that:-

(1) Subject to the provisions of this Act, no person shall purchase, acquire or have in his possession any firearm or ammunition unless he holds a 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 a licence, or, in the case of ammunition, in quantities in excess of those so authorised; or

(b) fails to comply with any condition subject to which a firearm licence is held by him, he shall, subject to the provisions of this Act, be guilty of an offence and liable—

(i) if the offence was committed in a prohibited area to a fine of five thousand dollars or to imprisonment for ten years, or to both such fine and such imprisonment;

(ii) if the offence was committed elsewhere, to a fine of three thousand dollars or to imprisonment for five years or to both such fine and such imprisonment.

Section 6(4) of the Act says:-

A firearm licence shall, unless previously revoked or cancelled, continue in force until the thirty-first day of December in the year in respect of which it was issued, but shall be renewable for a further period of one year by a licensing officer, and so on from time to time, and the foregoing provisions of this section shall apply to the renewal of a firearm licence as they apply to the grant of a firearm licence.

4. It is clear from the Act that a person in possession of a firearm commits an offence unless he also has a licence which is in force, or unexpired, at the time of the possession. A licence lasts until the 31st of December of the year it was issued (in this case that would be 31st December 1998) and it can be renewed from year to year. Mr Bartlett does not say he renewed the licence at any time, he says the "original" licence was valid for 12 years. That, according to section 6(4), is just not possible.

5. That is not an end to the matter because Mr Bartlett's defence is based on section 10 of the Penal Code [Cap.26]. It says:-

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 omission to any greater extent than if the real state of things had been such as he believed to exist.

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

In essence what Mr Bartlett is saying is the licence, on the face of it, "continues in force until 31st December 2010", and he therefore honestly and reasonably believed at 2nd September 2004 he was authorised to be in possession of the shotgun and ammunition. The case proceeded on that basis. Evidence was given by the Senior Licensing Officer at the time of issue of the licence and his Assistant. Mr Bartlett also gave evidence. The case was argued on the presumption that the prosecution had to establish, beyond reasonable doubt, mens rea or a guilty mind. To put it another way, they had to prove that Mr Bartlett did not honestly and reasonably believe his licence lasted for 12 years.

6. Judgment was reserved and whilst considering the papers and the law I realised I may have erred and that an initial issue of whether section 5 of the Act gave rise to offences of strict liability should have been raised. Counsel were advised and invited to make submissions on that point.

7. Mr Cade had already incorporated some argument on the issue in his original submissions but not directly on the point. Mr Barry had not touched on the issue in his final address. That is not intended as any criticism of counsel in any shape or form; the error was clearly mine in not raising the question of strict liability earlier. It seemed only right that both Mr Cade and Mr Barry be given the opportunity to address that aspect of the case. They have done so and I thank them for their helpful arguments.

8. It is generally accepted that "It is a salutary principle that conviction of a serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable" [1] However, as Wright J said in the much earlier case [2], "There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by words of the statute creating the offence or by the subject matter with which it deals, and both must be considered". In other words, there are some offences which do not require the prosecution to prove mens rea or a guilty mind. These are the offences of strict liability, sometimes alternatively known as offences of absolute liability. The importance of that in this case is, if section 5 of the Act creates an offence of strict liability Mr Bartlett cannot rely of the defence afforded by section 10 of the Penal Code.

9. In this case there is a two stage process. First, there is the need to consider whether a section 5 offence is one of strict liability. If it is, the second stage is never reached. There would be no defence available to a defendant, at least certainly none based on an honest and reasonable mistake, once the prosecution had proved the actus reus of the offence. If it is not an offence of strict liability then the second stage, the defence of honest and reasonable mistake, has to be considered. In that regard I asked counsel to consider the somewhat different approaches to that kind of defence in the cases of R v. Tolson [1889] UKLawRpKQB 85; (1889) 23 QBD 168 and DPP v. Morgan [1975] UKHL 3; [1976] AC 182.

10. The possibility of an offence being one of strict liability is acknowledged by the second limb of section 10 of the Penal Code. As set out above it says, "The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.". Section 10 is a statutory provision which unambiguously states the law can expressly or impliedly exclude the defence. This entails an examination of the relevant law, in this case the Act, to ascertain whether there is an express or implied exclusion of the rule. This is not only a statement of the common law position, as is set out, for example, by Wright J in the Sherras case, but more importantly, in this jurisdiction, it is a clear statement of the law in Solomon Islands.

11. There does not appear to be an express exclusion, no exact words, in the Firearms and Ammunition Act which clearly say something to the effect of; section 10 of the Penal Code does not apply to this Act.

12. Although there are no clear words there is a section (s. 54) which may amount to an exclusion. The section says:-

"The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force in Solomon Islands relating to the manufacture, sale, transfer, purchase, acquisition, possession, use, storage, carriage, transportation, importation or exportation of firearms, ammunition or explosives."

Quite frankly though, I do not fully understand what the section is concerned with. Historically the possession of arms and ammunition was controlled by The King's Regulations and then by the Arms and Ammunition Ordinance. The "modern" Act dates from the late 60's. The King's Regulations (and later the Ordinance) restricted the issue of licences to shot guns and .22 calibre rifles. A similar restriction was imposed by a notice issued under section 23(1) of the Act [3] although that was by exclusion rather than inclusion as is the case with the King's Regulations. There does not appear to be any repeal provisions in the Act and even bearing in mind sections 23 and 24 of Interpretation and General Provisions Act it is difficult to understand what the aim of the draftsman was in providing section 54. If the earlier legislation (and Regulations) were not repealed by the Act there would be no need to preserve the status quo in respect of shot guns and .22 rifles pending the issue of a notice under section 23(1). Could s 54 possibly be saying the Act adds to the law as is, for example, set out in section 10 of the Penal Code? What would it add? I have not encountered a similar provision in other legislation creating criminal offences in Solomon Islands and as the meaning of the section is unclear (to me) it would be extremely foolhardy to hold that it was an express exclusion of the definition of criminal responsibility contained in section 10 of the Penal Code.

13. That still leaves the question of whether there could be, in the Act, an implied exclusion of section 10 and if there could be, has there been. The question can only be answered by looking at the provisions of the law relating to the subject. As was recognised by Daly CJ [4] whilst, "...there is a comprehensive Code of Solomon Islands dealing with matters such as general rules as to criminal responsibility" and whilst, ".....it is the intention of the Constitution that the common law rules should "wither away"", "We must, however, keep one foot in England as section 3 provides for the interpretation of the Code as follows:

"3. This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith."

In view, however, of the circumstances of near neighbours with similar Code is (sic) maybe that an opportunity should be taken to amend this provision. But that is for Parliament to decide".

We are now nearly 20 years on from Daly CJ's comments and Parliament has still not decided to amend the provision. In my respectful view I must interpret both the Penal Code and the Act in accordance with Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England. I accept entirely that I do not import the whole of the common law into the exercise and substitute it for Solomon Islands law but I seriously doubt anyone suggests the alternative, that I completely ignore it and the principles of legal interpretation obtaining in England.

14. There have been a number of English cases relating to strict liability arising from firearms legislation. Some of them very recent [5]. In Zahid the Appellant was arrested for some minor offence. He was searched and the police discovered two bullets in his inside pocket. His explanation was he had found a package on his doorstep and had put it in his pocket. He thought it contained bolts or screws left by workmen who were repairing his house. The possibility was mooted that the two bullets found on him had fallen out of the package whilst it was in his pocket. He appeared before the Crown Court and pleaded guilty to possession of the bullets after the judge made a preliminary ruling that the offences he was charged with were ones of strict liability. All the prosecution had to do was to prove he had possession of the bullets. The judge said there was no defence available to Mr Zahid as a matter of law. In the appeal his Counsel, Lord Gifford, sought to distinguish a number of previous decisions where the courts had held that offences under ss 1 and 5 of the UK Firearms Act were strict liability cases. Section 1 of the UK Act is similar to our section 5. In the UK Firearms Act section 5 deals with possession of certain types of prohibited firearms and ammunition, what might be termed absolutely prohibited items. It is akin to enforcing regulations and orders made under section 23 of the Act. Hooper LJ and Flaux and Spencer JJ dismissed Zahid's appeal. In doing so they cited with approval the judgment of Auld J in R v. Bradish [6].

15. It should be observed Zahid dealt with a case where the defendant was in possession of a container or package which in fact contained a firearm (or ammunition) but which the defendant genuinely and mistakenly believed contained something different and entirely innocent. The Court held there was no defence available to him because they agreed with the trial judge's finding that firearms offences were offences of strict liability. They reached their decision for the reasons set out by Auld J in the Bradish case. His Lordship said there (at page 467) the offence of being in possession of a prohibited weapon contrary to section 5 of the UK Act was an offence of strict liability because;

"First, the words of the section themselves, 'A person commits an offence if without . . . authority . . . he has in his possession . . .' any firearm, weapon or ammunition of the type defined, makes plain that this is an offence of strict liability.

Secondly, the comparable words and structure of section 1 of the 1968 Act have been held by this court in Howells ([1977] QB 614) and Hussain ([1981] 1 WLR 416) to create an offence of strict liability.

Thirdly, the clear purpose of the firearms legislation is to impose a tight control on the use of highly dangerous weapons. To achieve effective control and to prevent the potentially disastrous consequences of their misuse, strict liability is necessary, just as it is in the equally dangerous field of drugs. See per Lord Guest in Warner, at page 421 and p 301, (Warner v. Commissioner of Police of the Metropolis [1969] 2 AC 256) Given that section 1 has been held to create an offence of strict liability, this consideration applies a fortiori to section 5, which is concerned with more serious weapons, such as automatic handguns and machine guns, and imposes a higher maximum penalty."

His Lordship set out additional reasons for his finding which are not strictly pertinent in Solomon Islands.

16. In respect of points one and two, the wording in the Act is very similar to that contained in the UK Act. Section 5 is quoted above (see paragraph 3 supra)." If any person....... has in his possession any firearm or ammunition without holding a firearm licence in force at the time, ....he shall .......be guilty of an offence". It should be noted that Zahid and Bradish were dealing with container cases under section 5 of the UK Act. However, in both cases the court took it as read that section 1 of the 1968 UK Act (basically our section 5) created an offence of strict liability. The English authorities dated back at least to 1977 [7].

17. As regards point three the Act can be similarly described. It is not merely a licensing or regulatory provision. It is, "An Act to make further and better provision for the control of the possession....... of firearms and ammunition". The Act has a clear purpose, the control of firearms. It was not just a regulatory framework that introduced a licensing system so the authorities could keep track of firearms and raise revenue from licences. The licensing of weapons was the method of control. It was thought important to control weapons at the time the legislation was passed and it is no less important now. Given the recent history of Solomon Islands it might even be thought to be more important now. That is borne out by an amendment to the Act in 2000. The Firearms and Ammunition (Amendment) Act 2000 was an act "to amend the Firearms and Ammunition Act in order to prohibit the manufacture, sale, carriage, possession and use of replica pistols or other imitation firearms" . It provided that ""imitation firearm" means a replica of a pistol or other firearm which has the appearance of a firearm, but which may not be capable of discharging or being adapted for the discharge of any ammunition in the manner described in the definition of firearm and includes an air gun, air rifle, air pistol or toy-guns". It was obviously thought important and necessary in 2000 to control firearms by prohibiting the manufacture etc. of even toy guns.

18. In the words of Lord Judge CJ in Gregory [8], "To be in possession of a firearm without a firearm certificate is an offence of strict liability. The authorities are consistent and numerous". It is not for me to change the law, my function is to interpret the law. However close our "near neighbours with a similar Code" might be, I am obliged to interpret the law in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England. In doing so, and in respect of section 5 of the Firearms and Ammunition Act, I would have to agree with Lord Judge. There are a number of very persuasive and consistent English authorities in respect of a like offence which lead to the inevitable conclusion that possession of a firearm without a current licence, is an offence and one to which strict liability attaches. Mr Bartlett cannot avail himself of the defence of honest and reasonable mistake provided by section 10 of the Penal Code.

19. Mr Bartlett has made admissions that establish, without any doubt, he was in possession of both the Remington shotgun and the shells on 2nd September 2004. The prosecution have established that, without any doubt, he also held a firearms licence. By operation of law (section 6 (4) of the Act) the licence could not have been current in 2004. The licence, by operation of law, could only remain in force until 31st December 1998 and could not have been authority for Mr Bartlett to possess the weapon and ammunition beyond that date and in particular, on 2nd September 2004. It has been established beyond any possible doubt that he had in his possession a shotgun and ammunition for a shotgun on 2nd September 2004 and that he did not have a licence which at that time was currently in force. He is guilty of both charges.

Chetwynd J

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^[1] R v. G [2004] 1AC 1034; [2003] UKHL 50; [2003] 4 All ER 765 (HL) per Lord Bingham
^[2] Sherras v. De Rutzen [1895] 1QB 918
^[3] Page 2478 of the Volume IV of the Revised Laws of Solomon Islands.
^[4] R v. Wong Chin Kwee and Others [1983] SILR 78
^[5] R v. Deyemi and Edwards [2007] Crim 2060; R v. Zahid [2010] EWCA Crim 2158 and R v. Gregory [2011] EWCA Crim 1712
^[6] R v. Bradish [1990] 1QB 981
^[7] See R v Howells mentioned above.
^[8] See paragraph 14