Vose v R [2023] SBHC 7; HCSI-CRC 683 of 2021 (20 March 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Vose v R
Citation:
Date of decision:	20 March 2023
Parties:	Alister Vose and Sepi Kasi
Date of hearing:	On the papers
Court file number(s):	683 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:	Magistrate Courts
Order:	1. This appeal is dismissed.
Representation:	Mr A Bosa for the Appellant Mr A Meioko for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Liquor Act S 2, S 85,86, The Dangerous Drugs Act S 42, Customs and Excise Act S 34,
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 683 of 2021

ALISTER VOSE AND SEPI KASI

V

REX

Date of Hearing: On the Papers
Date of Judgment: 20 March 2023

Mr A Bosa for the Appellant
Mr A Meioko for the Respondent

Lawry; PJ

JUDGMENT ON APPEAL

Introduction

1. The Appellants were charged with selling liquor without holding a licence authorising the sale of liquor. They both pleaded not guilty. In the Magistrates’ Court in Gizo their counsel sought a preliminary ruling on the issue whether kwaso falls within the definition of liquor under the Liquor Act. The learned Magistrate ruled that the liquid known as kwaso is liquor as defined in section 2 of the Liquor Act. The Appellants have appealed the ruling.
2. The grounds of appeal are set out as they appear in the Petition to Appeal:
   • “1. The learned Principal Magistrate erred in law in failing to apply the correct interpretation of section 85 of the Liquor Act.
   • 2. The learned Principal Magistrate erred in law by misdirected itself on the interpretation of liquor as transpired in paragraphs 12, 13 and 14 of his ruling on the different categorises of items.
   • 3. Further grounds of appeal may be filed once the written decision and court record is received.”
3. No further grounds of appeal have been filed. This decision then deals with grounds 1 and 2.

Ground 1

4. Section 85 of the Liquor Act provides:
   • “85. In any proceedings under this Act, a certificate purporting to be signed by a registered pharmacist in the employment of the Government, stating the percentage of alcohol contained in any liquid submitted for his examination, shall be admissible in evidence, and in the absence of evidence to the contrary may be accepted by a court as proof of its contents.”
5. The section is concerned with the admissibility of evidence. It is concerned with more than just criminal proceedings. If a registered pharmacist who is employed by the Government signs a certificate that states the percentage of alcohol in any liquid, that certificate can be produced and be accepted by the Court without the need to call the pharmacist to give evidence. The section does not provide that in any prosecution under the Act that the prosecution must produce a certificate by a registered pharmacist who works for the Government.
6. The Dangerous Drugs Act has a similar provision in relation to the analysis of drugs. Sections 42 of that Act provides:
   • “42. In any proceedings under this Act the production of a certificate purporting to be signed by a Government chemist shall be prima facie evidence of the fact therein stated.”
7. The Appellant submits that section 2 defines the word “liquor”. He says further that read together with section 2, section 85 means that in any proceedings proof that a liquid is a liquor must be provided by a certified or registered pharmacist. That is not what section 85 provides. The words of the section should be given their ordinary meaning. The Appellant is asking the Court to read in words that Parliament has not used. Section 85 relates to all proceedings under the Liquor Act. Section 2 does define the word liquor. It provides:
   • "liquor" means any wine, spirits, beer, or any liquid containing alcohol ordinarily used or fit for use as a beverage, or any other liquid which the Minister may by notice declare to be liquor for the purposes of this Act, but does not include any alcohol or spirits the importation of which is restricted under section 34 of the Customs and Excise Act;
8. In a prosecution under the Liquor Act, in relation to kwaso, if the substance is a liquid containing alcohol ordinarily used or fit for use as a beverage then it is liquor in terms of the Liquor Act. How then is that to be proved? The Appellants submit that the prosecution must produce a certificate that is signed by a registered pharmacist and once that it done it is for the defence to rebut that proof. This submission ignores section 86 of the Liquor Act which provides:
   • “86. Where, in any proceedings for an offence under this Act, it is alleged that any liquid is liquor the onus of proving such allegation to be untrue shall, unless the court otherwise directs, rest on the defendant.”
9. The first thing to note is that whereas section 85 refers to any proceedings, section 86 only relates to proceedings for an offence. The second thing that is required is that there is an allegation that a liquid is liquor. It does not require prima facie evidence that it is a liquor, only an allegation that it is. There is then a reverse onus on the defence to prove that it is not a liquor. Put another way, in proceedings for an offence against the Liquor Act a liquid that is alleged to be a liquor and is ordinarily used as a beverage, is presumed to be a liquor until the defence proves that it is not.
10. Parliament recognised that the provision could in some circumstances lead to an unfairness. In most cases the reverse onus will apply, however the words “unless the Court otherwise directs” must mean that there could be a circumstance where the Court can direct that the reverse onus will not apply. That is not likely to arise where the circumstances suggest the substance is kwaso. However there could conceivably be circumstances in a proceeding for an offence under the Act where the defence may show that a sample of the liquid should be tested in order for the defence to discharge the burden. If the defence are deprived of the opportunity to do that because the liquid has been destroyed leaving no sample to be able to be tested, and the defence bring an application within what the Court considers is a reasonable time and of course well before the date of the trial, for the substance to be tested, the Court may consider that such circumstance might in those rare occasions justify directing that the reverse onus would not apply.
11. Although section 85 does not refer to the standard of proof, the Magistrate is correct that when there is a reverse onus the standard the defence must meet would be on the balance of probabilities.
12. It follows that at paragraph [16] of his judgment the Magistrate correctly interpreted section 85. The prosecution of the Appellants did not require evidence of the percentage of alcohol in the substance said to be kwaso. There was not any direction that the reverse onus did not apply. Therefore there was no need for the prosecution to produce a certificate by a registered pharmacist employed by the Government. The allegation in the charge that the substance was a liquor is sufficient. It is then for the defence to discharge the burden of proof on the defence to show it was not. Ground 1 must fail.

Ground 2

13. The second ground challenges the ruling of the learned Magistrate at paragraphs 12, 13 and 14, as relates to the categories of items. This is a reference to the definition of liquor set out in section 2 of the Liquor Act. The learned Magistrate set out the five categories of liquor set out in the definition section. He correctly excluded wine, spirits and beer. The fourth category is “any liquid containing alcohol ordinarily used or fit for use as a beverage”. The fifth category is: “ any other liquid which the Minister may by notice declare to be liquor for the purposes of this Act, but does not include any alcohol or spirits the importation of which is restricted under section 34 of the Customs and Excise Act;” He excluded that fifth alternative. The Appellants’ submission that the substance cannot be a liquor unless the Minister declares it to be so ignores the fact that the categories are alternatives.
14. In statutory interpretation the word “and” is conjunctive, meaning it combines things. The word “or” is disjunctive meaning it separates things. In section 2 of the Liquor Act the definition of liquor necessarily identifies the categories and separates category 4 and category 5 by the use of the word “or”. They are therefore alternatives. It is not necessary for the Minister to declare kwaso as a liquor for a Court to find it is a liquor if the elements of the fourth category are made out. The Magistrate was correct to exclude this alternative.
15. The Magistrate’s finding is that the fourth alternative must apply. For proceedings under the Liquor Act where a Defendant is alleged to have sold kwaso, and be caught by the fourth alternative, the prosecution would need to prove that the Defendant sold a substance to another, that the substance sold was a liquid, which would usually be not in dispute, that it was ordinarily used or fit for use as a beverage. The Court would be entitled to take judicial notice that kwaso is used as a beverage (whether it is fit for that purpose may be another matter). It would then be for the defence to prove that the liquid did not contain alcohol. If the defence failed to do that the elements of the offence would be made out.
16. Ground 2 must fail and the appeal is dismissed.

Order

1. This appeal is dismissed.

By the Court
Hon. Justice Howard Lawry,
Puisne Judge