Regina v Bartlet [1987] SBMC 2 (8 July 1987)

CENTRAL MAGISTRATE'S COURT OF SOLOMON ISLANDS

REGINA

-v-

ALEX BARTLETT

Before: J.K.R. Stanford-Smith P.M.

Date: 8th July, 1987

JUDGMENT

The defendant stands charged with 3 counts contrary to Customs & Excise Act.

A. Contrary to section 214(d) that on the 19.12.86 he knowingly acquired possession of a TV, Video recorder and 10 tapes with intent to defraud the revenue of duties.

B. Contrary to section 214(d) that............he was knowingly concerned in the carrying away of the same items with intent to defraud.....

C. Contrary to section 214(e) that.............he was knowingly concerned in the fraudulent evasion of duties in respect of the two items.

The facts of the case that are not in dispute are that on the 19.12.86 at about 7.30 am the Oceania Courier arrived at Point Cruz. On board in the possession of the Captain were Unmanifested cargo namely a TV, Video Recorder and 10 tapes. These were declared and noted by the Boarding Officer who instructed the Captain that he would collect the items when he had cleared another ship. When he returned they had been removed. He checked with the Landing Officer whether these items had been produced by the defendant to which the reply was they had not. The Boarding Officer went on board between 7-8 am the first time and the second visit was about 9 am. The Landing Officer confirmed that unmanifested cargo should be deposited with him until duty was collected. Once duty was paid, they could be released to the consignee. No duty was paid.

Charles Savaki a security guard at the Ports Authority gate gave evidence that he saw the defendant enter the wharf area at about 6.30 am in a Hilux and saw he leave with a 'video case' on the back. He spoke to him and asked what it was. The defendant said 'his video' the witness said he asked about clearance and was told 'yes'. He said this was about 6.45 am. Ambrose was on duty as well and was sitting down on the other side of the gate post. In cross-examination, he confirmed that only the 'in' gate was open and the bar was up when the defendant came in. He told Ambrose. He said it was 6.30 - 6.45 not the usual time to collect. He saw the case it had "video set" printed on it.

Ambrose Ambu the other security guard gave evidence that he was on duty at the gate-post. Alex came in at 8 am and left about 8.15. He heard Charles talk to Alex, and ask about the video and the clearance. Alex said he didn't have it and would go to customs and come back. Alex went towards the office but didn't come back. Ambrose knew 'Willie' and didn't see him take anything out. The only area of conflict in evidence of the two witnesses was the timing. Charles said he was on the early shift 12-8 am Ambrose 7.45-4. Charles said the defendant came in at 6.30 - 6.45. Ambrose said 8 am left 8.15 am. Apart from this, they were adamant they saw the defendant come in and go out with a case on his Hilux, and they both knew him well.

John Dick gave evidence that he collected the items from the defendant's house on the 23/1 having phone the defendant who said he was too busy to bring goods in. He identified the items. Only 8 tapes were produce in court, 2 other collected belonged to another. He said - all video tapes must be screened before release to the consignee. David Dagi gave evidence that duty must be paid before goods can be taken. No duty has been paid. Duty on these items are 60% of value and a 20% surcharge on that duty, together with $4.00 per tape.

The witness spoke to the defendant one afternoon and asked for his submission on how the goods were collected and said the goods would have to be produced.

Inspector Tagini produced the defendant statement.

Charles Savaki was recalled and identified the case. He explained that the 'printing' he saw was in fact the picture of a TV set on the box. It was clear he did not know how a video recorder could be identified but called a TV set a video set.

The defendant gave sworn evidence that he had made an arrangement for the captain to make the purchase for him a log time ago. He received a phone message via his secretary and went to the wharf at 8-10 am he placed his visit later in the morning. He said the gates didn't open until 7.30. He drove in his Hilux. He inspected the goods and agreed a price. He then left and on going out saw Willie and said "can you deal with TV and Video." He left and went to his office. This took about 30 mins. He saw the items in his house that evening at 5 - 5.30 pm. This was the Friday 19/12. On the Sunday, he went to New Zealand and returned on the 6/1. In mid January, he saw Daki who said the items must be assessed and brought back. He said come and collect them. They were collected and on the 10/3 he wrote a short letter- which was his only conduct with Customs & Excise.

In cross-examination, he said he saw Willie outside the offices with some men, when he asked him to deal with the goods. The defendant has never taken goods nor had goods delivered without duty having been paid. He is aware of the procedures as he has often received goods albeit not unmanifested cargo. William Baeto gave evidence that Alex is a good friend. He came to his office and said "Willie, Video aboard take care of it. The defendant then left.

The witness thought he meant transport. Later the goods were delivered to his office 8 - 8.30. They were placed in his truck and taken to the defendant's house about 10.30 - 11 am. There were 3 cases. He was not stopped at the gate because of his position. The witness could not deal with customs himself and it was up to Alex to deal with it. In cross-examination, he said his office was upstairs and Alex came in and up his office. Willie arrived at his office about 7.30. Alex came between 8 - 8.30 am.

The defendant and his witness both conflict on timing. The defendant said he went to the wharf at between 8-10 am. His witness said he saw him in his office at 8 - 8.30. That was after he had been on board. So the defendant must have arrived shortly before 8 am or right on 8 am. That is consistent with Ambrose who said he came in about 8 and left about 8.15 am. I attach no importance to the clear conflict on time placed by Charles. Time and 'Clock time' have little significance in the Solomon Islands and he was clearly mistaken upon which shift he was on that day.

The defendant said he saw Willie outside with some men, when he spoke to him. Willie said the conversation took place on a first floor office when they were alone. This is a major discrepancy in each account. The conversation alleged to have taken place at different locations and one alone, the other with men present.

The onus lies upon the prosecution to prove each element in each charge beyond reasonable doubt. If the court has any doubt then the defendant must be acquitted. With such major facts in issue someone must be lying. I have considered the evidence of each witness and taken note of their demeanour in court. I accept the evidence of the Boarding Officer, Landing Officer, John Dick, David Ragi and Inspector Tagini without reservation. I was impressed with both Abrose and Charles. They do conflict on timing but as stated, I attach no great importance to this as it was clear that Charles was mistaken as to his shift that day. Both were adamant they saw the defendant, someone known to them, he came in early, stayed for a short time and left. He had a case in his truck, which both said they knew was TV/Video because of the conversation between Charles and the defendant, and they saw the case. They have no dispute with the defendant and no reason to lie.

The defendant obviously has reasons to change his account, and his witness is a good friend and upon the basis of me accepting the Prosecution witnesses must be trying to protect his friend. The defendant knew goods must be declared and duty paid before they release. If he asked his friend to deal with his goods why did he not supply him with the clearance documents, or provide him with the cash to pay duty.

The fact of 'acquiring possession' and 'carrying away' is not sufficient for the court to convict. The court must be satisfied that the defendant 'knowingly acquired' and was "knowingly concerned in carrying away" with intent to defraud and intent to fraudulently evade duties. Upon the facts, I found proved they clearly establish on intent to defraud or to fraudulently evade. That is the defendant knew duty was payable but did not declare them, contact the Customs and Excise Officers or tender duty on the 19/12. Neither did he make any attempt until after the items were seized in January. One can accept that he may have been busy but he has to run businesses and his office must run whilst he is not in the country he could have delegated that duty to someone. Only after the goods were seized did he write a very short letter to the Controller despite having been spoken to by a Senior Officer, Mr. Dagi, earlier. In his letter, he states that the goods were "accidentally delivered by the wharf boys", he made no reference to the Senior Manager being asked by him directly to deal with them. If the whole incident had been a misunderstanding why did he not immediately explain and deal with it. Had I accepted the defence case that the items were in fact transported by DW 1 upon the instruction of the defendant it is clear that the defendant knowingly acquired possession of the goods, and was knowingly concerned in the carrying away of the goods. His actions at the time could have exhibited an intent to defraud and a fraudulent evasion. He knew that duty was both due and payable at the wharf. He made no attempt to pay, made no arrangement for payment to be tendered and looking at the account put forward in the least favourable light he asked someone who could come and go with impunity to transport the goods to his house. Both knew duty should have been paid.

I am satisfied beyond reasonable doubt that the defendant on the 19/12/86 was knowingly concerned in the carrying away of goods with intent to defraud the revenue of duties thereon, contrary to section 214(d) and further.

That he was knowingly concerned in the fraudulent evasion of duties on these items, contrary to section 214(e).

Having convicted the defendant of 'carrying away' I am of opinion that there is no need to make a finding in respect of the court of "knowingly acquiring possession" at this stage and therefore adjourn that court 'Sine die' not to be restored without leave of court. The carrying away offence would automatically on the facts, involve acquiring possession as the goods were delivered to his house and he had possession of them.

The defendant is convicted accordingly on Counts B and C.

J.K.R. Stanford-Smith
Principal Magistrate (C)