Regina v Mamaloni [1986] SBMC 3 (27 March 1986)

CENTRAL MAGISTRATES COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

R

-v-

MAMALONI

Before JKR STANFORD-SMITH

Received letter from Defendant. Called Mr. Freeman and asked him to appear. Mr. Muria appears and contacts his client. Client will not attend.

Mr. Freemans For the Crown
Mr. Muria For the Defendant

COURT: I have received a communication. I propose to take action as would be with Judge and Jury. I pass this communication down for your information.

Mr. MURIA: Having read the correspondence clear that it is contempt of Court. I have had not had the opportunity to discuss with my client. I spoke with him. He was upset about the news. On the ABC hence he wrote this correspondence to the Governor-General and Prime Minister. I do not think client realises the consequences copying it to the Court. I will advice him that on Tuesday he will have to do something to purge his contempt.

COURT: What do you say about my dealing with this case because of this letter.

J. MURIA: Subject to what you think a verdict by you may or may not be viewed with some reservation. It may give you some difficulty.

COURT: In Solomon's Magistrates sit down. Not lay jury but Professionals.

JOHN MURIA: If you consider that dispute this letter you can adjudicate.

COURT: Do you leave it to the Court.

JOHN MURIA: Yes, it is a matter best left with yourself.

J. FREEMAN: Not necessary say about anything about the contents. Even if a communication had reach a jury it would be a discretion exercised by the Judge. It is a matter for the court. The effect of refusing to hear may effect future trials. If by writing such a letter it was possible to halt the trial. This is something that accused may be tempted to follow. Given the shortage of judicial man power a difficult situation may arise. I do not impute any such intention upon the defendant.

COURT: I will reserve the matter until 8.30 am 2nd April.

RULING: I have received a copy of a letter written by the defendant sent to the Prime Minister, copied to the Governor-General, the Minister of Police and Justice and myself. This arrived by hand in the latter part of Thursday morning. Having read the same, I called for both parties advocates and the defendant to appear before me in open court. Mr. Muria appeared for the defendant. Mr. Freeman for the DPP. Having informed them of the fact of a communication I hand the document to them and asked them to address me. Without dealing with the contents of that letter both advocates accepted that it was a matter for the Court to decide whether I should disqualify myself from proceeding further. In Solomon Islands, the vast majority of civil and criminal cases are heard by and determined by Magistrates sitting alone that is without a jury or assesses. The position being akin with a Judge sitting alone. Prior to this case, I have not met the defendant and have no knowledge of him apart from knowing of him as the Leader of Official Opposition. The contents of the letter have no bearing upon me personally or professionally. Having consider the authorities on communications in Archbold and Smith and Hogan I have no difficulty in dismissing the letter and contents from my mind and deciding this case upon the evidence I have heard in a judicial, independent and impartial manner.

JUDGMENT

The Defendant is charged with three counts that he on the 29th October 1985 at Henderson Airport.

1. Smoked or brought a lit cigarette within 50 ft of an Aircraft and

2. He braved in a disorderly manner both offences contrary to rules 2(7) b and 2(22) of the Aerodrome Rules C. 97. He is further charged contrary to s. 224(2) Penal Code that he with intent to cause Augere to stop refuelling an aircraft......be threatened to cause unlawful injury to the person of Augere or the property of Solair...... by blowing up the aircraft.

I firstly wish to deal with a preliminary point as this has been raised by the Defendant's advocate in his closing address, namely s.91(7) of the CONSTITUTION. This is procedural requirement requiring inter alia, the DPP to refer any case to the Minister of Justice where the defence, security or International relations of the Solomon Islands are concerned in any way. At the first hearing of this case on the 7th March after pleas were taken the Defendant in person raised the matter stating the section was applicable. On that occasion Mr. Freeman on behalf of the DPP requested details from the defendant as to why these charges fall within the section. The defendant was requested to submit details to the DPP's Chambers as to why the cases fell within the section which Mr. Freeman stated would be brought before the Minister. When this trial commenced on the 25th March 1986 the Court read the charges again to the defendant, asked if the defendant understood them, and obtained pleas of Not Guilty. Mr. Muria for the defendant confirmed that those pleas were in accordance with his instructions and did not address the Court upon the procedural requirement of s. 91(7). S.91(7) is purely procedural requirement that states that DPP shall not be subject to the direction or control of any other person or authority provided that where a case falls within the criterial already referred to, he shall act in accordance with any directions that the Minister may give him. The section cannot be pleaded as a defence, if the Minister had made directions this court has been informed of any and Mr. Freeman has stated that no details have been submitted to the Office of the DPP by the defendant or his advocate. No Nolle Prosequi has been entered after the signing of these charges not before this Judgment has been given and therefore this court has full jurisdiction to hear and determine the cases.

The facts that are not disputed in this case are that the 29th October the defendant was at Henderson Airport in the VIP Lounge attending a meeting with Diplomats, that were in transist on the Air Nauru Flight, and entertaining them thereafter. When that flight left the defendant and others remained in the lounge. At 5.53 a Private Aircraft arrived refuelling in transist from Tarawa to Australia.

I remind myself at the outset of the onus upon the prosecution to prove the elements of the charges beyond reasonable doubt.

Kipling Eddie an Immigration Officer gave sworn evidence in English and said that he was standing by the air-craft when he saw people come out of the VIP lounge. He walked over to them and the defendant wanted to know why the aircraft had landed and who had given it authority. He told the defendant it had come to refuel only. The defendant not satisfied with the explanation given walked out to the aircraft with his lit cigarette. The witnesses and Siosi tried to stop him but he ignored them. He was a few feet from the aircraft with his lit cigarette. The Solair groundcrew were trying to refuel and he said that if they did refuel the aircraft he would "burn" it. If they didn't give him the information he requested then he would burn it. The refuelling stopped and the groundcrew stood by. All this time the defendant had a lit cigarette in his hand. When it went out he lit another with a match taken from a box and having lit his cigarette and doused the match he threw the match on the tarmac. The defendant then told the Pilot and others around the aircraft if they didn't give him certain information he would 'burn' the aircraft. The witness took the threat seriously as the defendant had been drinking and in the opinion of the witness he was drunk, he still had the matches in his pocket. The witness then recounted that after various officials arrived including the Premier of Makira the aircraft left at 9.07 pm. In cross examination the witness said that the defendant was 'after' the manager of MUDA who was the subject of a Deportation Order made by the Minister of Immigration. Having been put to him by Mr. Muria he acknowledged he was aware of previous cases involving drug smuggling and that a Customs Officer was recently charged and awaiting trial in Australia. He had no suspicious about this aircraft and he knew of no reasons other refuelling as to why the aircraft had called at Henderson. He remained firm in his account that the defendant threatened to 'burn' the aircraft if it was refuelled and he believed and the defendant would carry out his threat. He acknowledged that in a report submitted later he didn't state a 2nd cigarette was lit by the Defendant but he did see the defendant light a second. He himself was a non drinking man but he was of opinion that the defendant was drunk. I was impressed by the witness who gave the appearance of trying to recall events fairly and I have no reason to doubt his veracity.

Henry Pika gave sworn evidence in English that having returned to Henderson for the private flight about 30 minutes before it landed. It landed at 5.53. He collected the inward clearance documents from the Pilot and saw the aircraft being refuelled. He then heard shouts from the VIP lounge. "Sendim go back plane" and saw the defendant leaning out of the window of the VIP lounge. Having completed the outward clearance he gave the documents to the Pilot. He saw that Siosi was holding the hand of the defendant, he had a lit cigarette. Siosi failed to stop the defendant, who walked up to the aircraft and threatened to blow it up if refuelling didn't stop. This threat was made as the groundcrew were refuelling. He clarified this by saying that Augere continued to refuel. The defendant ordered him to stop and said if he didn't stop he would blow up the aircraft. The defendant spoke with this witness asking why outward clearance was given. The witness said it was standard procedure.

The defendant asked him to withdraw that clearance. In cross examination he stated again that there was nothing abnormal about the aircraft landing to refuel, he had been advised through normal channels. He was not aware that the Ministry of Foreign Affairs would need to be informed for a private flight. He said if anyone was at all suspicious of the aircraft they should inform him. That was his job. He acknowledged the defendant had the right to ask him question but these should have been directed through proper channels, and the defendant's attitude was rude. The witness gave his evidence clearly and firmly and I believed.

David Dake was at Henderson on private business when he was informed that the private aircraft had landed. He went out on to the tarmac and heard a commotion from the direction of the VIP lounge. He walked over to Siosi and the Defendant when asked he explained to the defendant that the aircraft had come to refuel whilst in Transit from Tarawa. The defendant walked passed him towards the aircraft with a cigarette and matches. The witness told him that nom lit cigarettes were permitted on the tarmac but the defendant didn't extinguish the cigarette. He described the defendant as aggravated and not in a good mood. The witness requested Siosi to remove the defendant and the witness then left. He was later recalled and upon going out to the aircraft he saw the defendant between the starboard propeller and the cockpit. He was refusing to move away. The witness took his hand and asked him to leave. The defendant said everyone was lying and they were trying to get Nohay out of the country on the aircraft. He confirmed that eventually the aircraft left. The witness is a senior officer in charge of collections at the Port and Airport. He had no reasons to believe there was anything abnormal about the flight. He said that the Ministry of Foreign Affairs would only be informed of Military or diplomatic flights. I was impressed by the witnesses manner and his account was a fair recollection of events.

Edmond Augere gave his evidence in Pidgin. He is a member of the Solair groundcrew and was detailed to refuel this aircraft. The Pilot produced his fuel card and Augere went to refuel using Solair equipment. The Defendant came up to him at the aircraft holding a box of matches and can of beer and said "who told you to refuel". Augere said flight information had told him to stand by. The defendant then told him "do not refuel the plane. If you do not listen to what I say I will strike my matches". Augere then told the court that if the defendant had struck a match everyone would have blown up. He didn't refuel and took his equipment back to the Hangar. He was later recalled and refuelled the aircraft. In cross examination it was put to him by Mr. Muria that he recognised the defendant of the Official Opposition and as a 'Big man' and as such if a 'Big man' told him to do something, he being a 'Small man' he would have to follow that request Augere said yes that was so but added the rider that if the defendant wasn't a 'Big man' only a 'Small man' he would have questioned him. In Re-examination and when asked by the Court Augere said yes that was so but added the rider that if the defendant had told him to. That evidence is important. When the witness gave his evidence-in-chief he said that the defendant "stop refuelling if you do not listen to what I say I will strike my matches". By any construction that is a demand coupled with a threat to do an act that would involve violence to the witness, the aircraft, Solair's equipment, and all the people present, of which there were many. The Humblest form of request is a demand if it contains a menace which is to materialise on failure to comply with the request. It was clear in cross examination the question put by Mr. Muria was put in such a way that the witness having acknowledged he was a 'small man' and the defendant was 'big man' he would have to follow the request of the 'big man'. This being so much part of custom and due respect that ius afforded to "big man". Pidgin is not the most exact language and it could be construed by the answers given that the defendant stopped refuelling because he was asked to, not because of the threat. As a question of fact I am satisfied beyond doubt that Augere stopped refuelling as a result of the statement by the defendant "do not refuel, if you do not listen to me, I will strike my matches". Augere had heard that threat, saw that the defendant had the means to carry out the threat and realised the consequences. This is supported by Kipling Eddie's testimony.

"................ Solair groundcrew were trying to refuel and he (the defendant) told that if they did refuel the aircraft he would burn it".

and Pika's Testimony

"................ This threat was made as they were refuelling. .............. Augere continued to refuel. The defendant ordered him to stop and said if he didn't stop he would blow up the aircraft..............."

Robert Christopher a quarantine officer added little except he was at Henderson and he saw that refuelling had stopped. He saw the defendant by the aircraft and refuelling line.

Letcy Siosi Protocol Officer confirmed that he and the defendant had earlier seen diplomats in the VIP lounge and everyone was still drinking. He would not ask VIP's to leave. He saw the private aircraft land and knew nothing about it. The defendant wanted to know why the Ministry of Foreign Affairs had not been informed. The defendant went outside with his cigarette and Siosi followed. The defendant said to the Solair staff "do not refuel. I am the Leader of opposition" he could give no further details but confirmed the cigarette held by the defendant was still alight by the aircraft. The witness really did not take matters any further only in cross examination he said the whole affair was "politics" and his answers were evasive.

The defendant has elected to give sworn evidence. He has confirmed that he was in conference in the VIP lounge with diplomats in transit. Having arrived about an hour before that flight and remain after it had left. He was still in there when the private plan arrived. He learnt that the Ministry of Foreign Affairs had not been informed and did not know of its landing. He walked out and "accosted" officials in his own words. Upon seeing it being refuelled be stop it as he waited confirmation of certain matters before it was refuel and was allowed to take off. That information had to come from amongst others the Commissioner of Police, the Director of Civil Aviation and the Australian High Commissioner. He maintained that later having been assured he calmed down. He was concern on two counts. There had been smuggling of gold and drugs by air, and also that Nohay maybe removed by this aircraft. This was his reason for requesting the presence of Senior Officials. A course of action which cannot be criticised, if accepted, in respect of the former. He admitted that when the solair groundcrew stated to refuel they stopped as he said "if you don't I would blow it up". He stood by the aircraft and waited for the officials to confirm that Nohay was not being taken out of the country and also that the landing and take off had been approved and there has no clandestine motive behind the landing. He stated that he was not drunk and could infact drink a carton of beer and not be. He acknowledged he took a lit cigarette to the aircraft and he had matches. "He had to convince individual". In Cross Examination he again confirmed he had a lit cigarette by the plane, and that he said he would blow up the aircraft if it was refuelled. He also said that he meant to threaten the man, Augure.

He maintains that he was not told it had only care to refuel and he thought it may have had either gold, drugs or was going to take Nohay. The defendant would add not disclose why he had those suspicious as he said they were matter of national security and has international implication. The Court heard those particular "in" and whilst this court respects the defendant's belief they were matters of security and international relations they really relate to normal policing matters. When question at length he acknowledge that his interest in Nohay was more than of indirect concern and he had written a three page letter to the Prime Minister about the detention of this man prior to deportation. He had not realised that total responsibility for Deportation lay with the Minister of Imigration and not Judiciary. Again pressed in cross examination he said he called out the Premier of Makira Province and the Parliamentary Member for East Makira to say farewell to Nohay. He felt all his actions justified including making threats and saw it as his responsibility as a National Leader. This Court is only concerned with the offences as charged. The defendant has admitted being the aircraft with a lit cigarette, he has admitted issuing threats, and being obstructive. The total sum of his evidence is that he did these acts as he was justified because of his concern, and his position. This was the Line of the address of Mr. Muria who really did not deal with the elements of the offences and evidence but merely implied that the Defendant was justified in his action and because of that justification he was not answerable at Law. The defence argued that there is no evidence in support of the charge of disorderly conduct. Reviewing the evidence there is ample evidence. Firstly, he walked out on the tarmac with a lit cigarette, despite being told not to and being requested to return by a senior protocal officer and Senior Customs Officer. He again refused to leave the aircraft at the request of Mr. Dake. He issued threats which he admitted he meant to threaten Augere. Disorderly means, inter alia, untidy, confussed, irregular, unrely upon the evidence of witnesses it is clear that the Defendant's conduct was irregular, confused and it caused a commotion. Surely, he could have obtain information and dealt with such a routine matter without resorting to such behaviour. Court can envisage situations where someone may have to behave in a disorderly way to attract attention to a civil or criminal wrong, e.g. a woman alone in a house being attacked may have to shout, scream, or break a window to attract attention, but this was no life endangering situation. If the Defendant had real suspicious as to what was going on he could have picked up a teleplone to contact the relevant authorities and dealt with it in a orderly way. In any case that relies upon. Justification as a defence, if the law recognises the defence, there must be no alternative available to the defendant. This was not the situation in this case. There was a Senior Officer from the Ministry of Foreign Affairs and four customs. The defendant could have contacted those in authority to halt the departure.

The Commissioner could have been contacted by telephone or Police radio. The matter of Mr. Nohay has been raised and I feel compelled to deal with the matter. This man was the subject to a Deportation Order made by the responsible Minister and detained by a warrant signed by that Minister. That authority can only be questioned by the High Court upon proper application. No individual has the right to interfere with Officials carrying out the Minister's direction or carry out their duties and an individual has no justification to behave in the way described if that was his primary motive. I do not have to make any finding in that respect as no matter what motive the deffendant had it could not be justified there were other alternatives open to him, and there is no evidence of a criminal or civil wrong being prevented.

I am satisfied beyond reasonable doubt that on the evidence before me that on the 29.10.86 the defendant at Henderson Aerodrome took a lit cigarette within 50 ft on an aircraft, acted in a disorderly manner, and with intent to cause Augure to stop refuelling that aircraft threatened to cause individal injury to the person of Augure (and others) and I convict accordingly on all three counts.

SENTENCE

The defendant has been convicted after a full trial of two breaches of airport regulations. Regulation passed to ensure safety of passengers and personnel. The defendant had deliberately floated those regulations despite being asked not to.

The count of intimidation is a serious charge and must be dealt with as such. I acknowledge what the defendant thought but that doesn't excuse such behaviour particularly when that individual is a senior member of society and he should know better how to conduct himself in public.

Having said that, I recognise the defendant has no previous convictions and I give credit for that, I also recognise the contribution made by the defendant to the development to this country.

I sentence the three charges and arising from one incident.

1. Lit cigarette- $75

2. Disorderly Behaviour- $75

3. Intimidation- $200.

Payment within 7 days. 2 months in default

Right of Appeal.

Mr. Muria apologises to the court for writing the letter. ABC and Fiji news reports upset him.

JKR STANFORD-SMITH
Principal Magistrate Central