R v Faufane, Lalefauta & Fi'imae [1987] SBMC 4; [1987] SILR 88 (5 May 1987)

[1987] SILR 88

IN THE MAGISTRATES’ COURT OF SOLOMON ISLANDS
MALAITA DISTRICT

Criminal Case No. 93 of 1987

R

v

FAUFANE, LALEFAUTA & FI’IMAE

Magistrates’ Court, Malaita District
(M.W. Lodge, Principal Magistrate)
Criminal Case No. 93 of 1987

Judgment: 5 May 1987

Criminal law - demanding with menaces, contrary to s. 288 of the Penal Code - circumstances relating to demand for customary compensation.

Lodge PM: The first and second Accused are charged under s. 288 Penal Code with demanding $600 from Elizah Toloau with menaces or by force with intent to steal. The third accused is charged with the same offence, except that it is alleged that he demanded $200. It is for the prosecution to prove the charges against each accused beyond reasonable doubt.

The basic facts I find proved are that on 3rd April 1987 Elizah Toloau received a letter purporting to come from A3 demanding $200 "blood money compensation". The letter, produced as Exhibit "A" had been written by the fourth prosecution witness at the third accused’s dictation. I am satisfied that it was indeed the third accused who caused the letter to be written and who caused it to be delivered to Elizah.

Later that same day Elizah was stopped on the road by the three accused as he was driving to Gwale. They stopped him by standing in the road. A conversation took place between the second accused and Elizah during which the second accused demanded compensation of $600, or $200 each. The first and third accused were standing at the side of Elizah’s truck throughout this meeting. Elizah described the three accused collectively as looking cross. He refused to hand over $600 but after negotiation it was agreed that the accused would collect the money the following day.

In fact they never turned up on the next day, and the matter was not raised again until 13th April when Elizah went with the police to find the accused and hand over the money. There was a suggestion that at some stage between the 3rd and 13th the accused’s relatives went to Elizah’s home armed with weapons, but the evidence does not establish that any of the accused were present or were in any way responsible for such action.

It is not alleged that any of the accused committed an offence when the money was handed over on 13th April. What I must consider first is whether any demand with menaces was made by the accused when they stopped Elizah on the road, or, in the case of the third accused, whether the letter amounts to a demand with menaces.

"Menaces" includes threats of injury to persons or property and threats of injury to third parties which would induce the person to whom the menaces are addressed to part with money. It is not necessary to prove an express demand in words providing the words or gestures of the accused are plainly indicative of what he requires and tantamount to a demand.

Applying that test to the facts before me, I cannot accept that the letter itself constitutes a demand with menaces. On the face of it, it contains no express or implied threat at all. It is a quite reasonably worded demand for compensation.

However, it seems to me that the demand made later the same day is very different. Elizah’s vehicle was deliberately stopped by the third accused standing in the road. They were in a hostile mood. An unequivocal demand was put to him. The conversation went as follows:-

Joe: "Did you hear about our demand for compensation?"

Elizah: "Yes, I received a letter asking for $200."

Joe: "$200 is only for Meke, we want $200 each which is $600."

To this Silas added the words; "You must givem nomata long time". I am satisfied that the words used, the manner and demeanour of the accused, and the circumstances in which the demand was made are, taken together, sufficient to constitute a demand with menaces. In my view there was clearly an implied threat behind the demand.

At this stage I should point out in relation to the third accused that although the prosecution did not make clear whether they were relying on the letter, or Meke’s presence with the first and second accused, the charge as drawn is in my view wide enough to cover either or both incidents. Having found that the letter does not amount to a demand with menaces, it is nevertheless open to me to find that the third accused made a demand for $200 on the road.

I am satisfied in respect of all three accused that the evidence establishes that their presence on the road was not accidental, but that they were present in pursuance of a common purpose, actually assisting and actively encouraging each other by their presence.

Before I can convict any of the accused I must be satisfied that they had an intent to steal the $600. The defence raised is that even had the $600 been handed over it could not have been said to have been stolen as it would not have been taken fraudulently and without a claim of right made in good faith.

This defence also brings into consideration s.8 Penal Code, which provides that a person is not criminally responsible if he was acting in the exercise of an honest claim of right and without intention to defraud.

In either case it is not necessary that the claim of right be one which is well-founded in law, or even a reasonable claim - though obviously the reasonableness of the claim is something I am entitled to take into account in deciding whether the claim of right was honestly held.

The accused did not give evidence. There is only the evidence of the prosecution witnesses upon which I could find that the accused were acting in the exercise of an honest claim of right. Of course, I must make clear that the burden on the defence is only an evidentiary one, which does not derogate in any way from the burden on the prosecution to prove the case beyond reasonable doubt.

According to Elizah this was not a proper claim. It was put to him that in custom compensation must be paid for damage to one’s reputation, but he denied this. Apart from the letter, which states that the third accused’s claim was for blood money compensation, there is nothing to show that the demand had any proper basis in custom at all.

It strikes me that if the accused honestly believed that they had a good claim in custom they would not have approached Elizah in the way that they did. They would have approached him openly, and would have followed up the claim. Instead the evidence is that Elizah was accosted when alone in his vehicle. The initial demand was not followed up by the accused, despite an invitation to come the next day to resolve the matter. No explanation has been put forward by the accused which may put a different light on these sinister facts.

I am satisfied that the prosecution have proved beyond reasonable doubt that the accused did intend to steal the money in that they were acting fraudulently and with a bona fide claim of right. I find the accused guilty and they are convicted as charged.