Regina v Baekalia and Saro [1989] SBMC 1; [1988-89] SILR 159 (2 November 1989)

[1988-89] SILR 159

IN THE SOLOMON ISLANDS CENTRAL MAGISTRATE'S COURT

REGINA

v

PAUL BAEKALIA and MARCELLIN SARO

Central Magistrates' Court
(M.W. Lodge Esq., Principal Magistrate)

Hearing: 24, 25, 30 October 1989
Judgment: 2 November 1989

Customs and Excise Act - meaning of "possession" - fraudulent evasion of duty - essential elements of being knowingly concerned in the fraudulent evasion of duty.

Firearms and Ammunition Act section 19 - meaning of "in his possession or among his baggage"

Criminal Procedure - particulars of charge - section 118 and section 120 Criminal Procedure Code.

Facts:

Baekalia and Saro were charged with offences of failing to declare the possession of a firearm to a customs officer contrary to section 19 Firearms and Ammunition Act, making a false declaration contrary to 213(a) Customs and Excise Act and being knowingly concerned in the fraudulent evasion of duty contrary to section 214 (e) Customs and Excise Act. In addition Baekalia alone was charged with importing a firearm without an import licence contrary to section 15(1) Firearms and Ammunition Act. The defendants had purchased 2 rifles in Brisbane on 8 April 1989. While in Brisbane they met the Governor-General of Solomon Islands and were invited over drinks to travel to Honiara as VIPs. On 10 April they returned to Honiara but did not travel as VIPs. The rifles however, were taken through the VIP lounge by the Governor-General's security guard and were not declared to customs by either of the defendants. There was evidence that the rifles were later collected by the defendants. At the close of the prosecution case counsel for the defence submitted, inter alia, that:

1. The charge under section 213(a) of the Customs and Excise Act was defective as it did not specify the essential elements of the offence in that it was not stated whether the defendants were required to make a declaration in a matter relating to the customs laws or in a matter under the control or management of the Comptroller of Customs and Excise.

2. In relation to section 19 of the Firearms and Ammunition Act a person does not have to declare an item unless it is physically in his possession or among his baggage. Therefore an item which may be owned by a defendant but is in another person's baggage or in the possession of a third party does not have to be declared by the defendant.

3. In relation to section 15 of the Firearms and Ammunition Act it is nowhere stated in the proviso to the section upon whom the duty lies to leave a firearm that has been imported without a licence in the possession of a customs officer.

Held: (upon the submission of no case to answer):

(1) While it may be true that in relation to the charge under section 213(a) the particulars of the offence were technically defective the matter is covered by section 118, section 120(a) (ii) and section 120(f) of the Criminal Procedure Code. The particulars were sufficient to give reasonable information to the accused as to the nature of the offence and it could not be said that the accused had been thereby deceived or misled.

(2) The words "in his possession or among his baggage" in section 19 Firearms and Ammunition Act do not establish two mutually exclusive categories. The test of "possession" is far wider than mere physical possession and clearly includes custody or control. The effect of the words "among his baggage" is to widen further the scope of the word "possession" rather than to qualify it. A person may remain in possession of goods for the purposes of passing through customs notwithstanding that he temporarily parts with physical possession of them. R v. Collins [1987] Crim.L.R. 256 followed.

(3) Section 15(1) Firearms and Ammunition Act and the proviso thereto clearly place a duty on the importer of the firearm to leave the firearm in the possession of a customs officer when the firearm has been imported without a valid import licence.

Accordingly there was sufficient evidence to require the defendants to make a defence to all charges.

Both accused gave evidence and at the close of the defence case it was further submitted by counsel that:

4. The mens rea required in section 19 Firearms and Ammunition Act is an intent to deceive

5. By not being in possession of the rifle at the time he passed through customs the defendant Baekalia was not knowingly concerned in the fraudulent evasion of duty.

Held:

(4) Section 19 Firearms and Ammunition Act creates an offence of strict liability. Insofar as mens rea is required at all, it can only be mens rea as to the falsity of the declaration. Warner v. MPC [1969] 2 A.C. 256 applied.

(5) On a charge of being knowingly concerned in the fraudulent evasion of duty it does not necessarily have to be proved that the defendant was involved in the importation itself. There must be a sufficient nexus between the activities of the defendant and the importation and it must be proved that the defendant knew that there is a scheme to fraudulently evade duty and that he knowingly took part in the operation.

Cases referred to:

R. v. Collins [1987] Crim.L.R. 267
Warner v. MPC [1969] 2 A.C. 256; [1968] 2 W.L.R. 1303; (1968) 52 Cr.App.R. 373 [1968] 2 All E.R. 356

A. Rose for Prosecution
A. Nori for Baekalia and Saro

Ruling on submission of no case to answer:

LODGE PM: The defence have made submissions of no case to answer in respect of all four counts against Paul Baekalia and in respect of counts two and three against Marcellin Saro. At this stage s.196 of the Criminal Procedure Code only requires the prosecution to satisfy me that a case has been made out against the accused sufficiently to require them to make a defence.

On count three, being knowingly concerned in the fraudulent evasion of duty contrary to section 214(e) of the Customs and Excise Act, the submission is that there is no prima facie evidence to establish the elements of the offence. I reject this submission. In my view there is ample prima facie evidence.

More substantial submissions of law have been made on the other counts, which I need to consider in some detail.

In relation to count two, the offence under s. 213(a) Customs and Excise Act, the submission is twofold. First, that the charge is defective because it is not alleged whether the accused are charged in any matter relating to the Customs laws, or under the control or management of the comptroller, or that it is required to make a declaration in respect of a firearm, and that the accused have been thereby misled, and secondly that the prosecution have not proved a legal requirement to declare a firearm.

The first limb of this submission is, I think, answered quite simply by a reading of s.118 and s. 120(a) (ii) and s120(f) of the Criminal Procedure Code. Count two clearly states that it is a charge under s. 213(a) of the Customs and Excise Act. The particulars are in my view clearly sufficient to give reasonable information to the accused as to the nature of the offence and I cannot conceive that the accused have been deceived or misled. It must be borne in mind that the offence lays in the falsity of the declaration, which in turn depends upon the meaning of the word "possession". It is irrelevant whether the accused did not know or did not believe that they were obliged to declare the firearms as a matter of law.

It is true that the prosecution have not led evidence that firearms must be declared as a matter of law. They do not need to. There is evidence that the accused were asked to declare whether they had any dangerous weapons in their possession. It is the falsity or otherwise of their answer to this question in relation to their possession of the firearms and the nature of the goods that is in issue. The question of whether there is any legal requirement to declare firearms is a different matter and is a question of law for the court which I cannot see arises at this stage.

I therefore reject the submissions on count two.

I turn to count one. Mr. Nori has raised the interesting and ingenious argument that the words "in his possession or among his baggage" in s.19 of the Firearms and Ammunition Act express two mutually exclusive categories. Parliament intended to provide that a person must declare an item which is either in his physical possession, or among his baggage. In other words, an item which is in a passenger's baggage is not in his possession for the purposes of s. 19. If it was, Mr Nori argues, there would be no point in putting the words "among his baggage" in the section.

This is a novel proposition and one which has not been considered in Solomon Islands before. The concept of "possession" in relation to offences of strict liability is one which has been considered at length, and somewhat confusingly, by the courts in U.K. By virtue of s.3 of the Penal Code I have had regard to the principles of interpretation of the word "possession" in English Law. The authorities show that the test of possession is clearly much wider than mere physical possession of the object. It clearly includes custody in the sense of having items under one's control. It does not necessarily include ownership, though ownership may obviously be strong evidence of custody.

The point is that those authorities do not consider the effect of the extra words "or among his baggage". In my view one has to take a literal interpretation of those words. The effect of doing this is, however, the opposite to what Mr. Nori argues. The effect is in my opinion to remove from s.19 any element of mens rea. The words "among his baggage" do not qualify the words "in his possession" but add to them. It means that a person would be liable to declare any firearm or ammunition found among his baggage whether or not he knew it was there. To read it otherwise would artificially limit the meaning of the section. A person would be able to evade liability simply by passing the firearm to another person for the purposes of passing through customs. When one reads section 19 in conjunction with the relevant sections and definitions of the Customs and Excise Act I cannot accept that such is the result intended by Parliament.

I am assisted in this view by the recent case of R v Collins [1987] Crim.L.R. 256. That case was upon the interpretation of the similarly worded Customs Duty (Personal Relief) (No.1) Order 1968 (U.K) which applies to goods carried "with or in the accompanying baggage" of a passenger. The Court of Appeal held that a person who gave goods to other persons for the purposes of passing through customs duty free remained the importer and possessor of the goods notwithstanding that he temporarily parted with physical possession of them.

This decision makes good sense, and I am further persuaded to adopt it by the definition of the word "importer" in section 2 of the Customs and Excise Act as "the owner or any other person for the time being possessed of..." Though I am dealing here with the Firearms and Ammunition Act, it is clear that s.19 relates to the duty of a person importing firearms to report to a customs officer and therefore I feel that the definitions in the Customs and Excise Act are of assistance in construction since they are not expressly excluded.

For these reasons I would reject Mr Nori's submission as to the meaning of the words "in his possession".

Given my interpretation as a matter of law there is clearly prima facie evidence to support count three and I find both accused have a case to answer.

Finally I have to briefly consider the submission on count four against Paul Baekalia. It is submitted that s.15 and the proviso thereto do not make clear upon whom the duty lies to leave a firearm in the possession of Customs. I cannot accept this. As a matter of law in my view the only sensible interpretation of s.15 is that the duty lies on the importer. The importer is the person who commits the offence of importing without a licence. The proviso is there in order to provide a means for him to escape liability if he complies with certain conditions. It would be nonsense to say that an act by somebody else is capable of relieving the importer from liability.

I find there is a case to answer on count four.

Judgment:

LODGE PM: The accused are charged as follows. Paul Baekalia is charged with failing to declare the possession of a firearm to a customs officer contrary to section 19 Firearms and Ammunition Act, making a false declaration contrary to section 213(a) Customs and Excise Act, being knowingly concerned in the fraudulent evasion of duty contrary to section 214(e) Customs and Excise Act, and importing a firearm without an import licence contrary to section 15(1) Firearms and Ammunition Act. Marcellin Sam is charged with similar offences under s.19 Firearms and Ammunition Act, section 213(a) and section 214(e) Customs and Excise Act. He has already pleaded guilty to the charge under section 19 Firearms and Ammunition Act.

At the outset I remind myself that is for the prosecution to prove every element of each offence against each accused beyond reasonable doubt. Anything less than proof beyond reasonable doubt means that the accused must be acquitted.

The material facts are as follows. In April 1989 the accused went to Brisbane on official business. On 23 March 1989, before leaving Solomon Islands, Saro applied for and obtained a permit, no.0788, to import one Brno.22 rifle.

On 8 April, while in Brisbane, the accused and a Solomon Islander studying in Brisbane, Baddley Anita' a, went shopping. Among other things they purchased two Brno.22 rifles. One rifle was paid for by Saro, the other was paid for using money carried by Baekalia on behalf of one Robert Taefilia. The gunsmith issued one receipt for both rifles in the name of Baddley Anita'a.

In the evening of 8 April the accused met up with the Governor-General's party at the Mayfair Crest Hotel. Joining the party were the accused, His Excellency Sir George Lepping, ADC to the Governor-General Captain Belo, S/Sgt Akao and two unidentified members of the Queensland Police force. One of the topics of conversation during this drinks party was whether the accused, as senior police officers, were entitled to VIP treatment. Sir George expressed the opinion that both accused should join his party on the flight back to Honiara on 10 April. Baekalia said that he was prepared to travel as an ordinary passenger, but that if Sir George wished them to accompany him proper arrangements should be made. Sir George then instructed Captain Belo to formalise the arrangements.

Captain Belo, of whom it is pertinent to point out was the only one not drinking during this party, stated in evidence that he was unable to contact Foreign Affairs and the matter was never taken further. I gained the impression from Captain Belo that, quite sensibly, he did not take the suggestions made over drinks particularly seriously and did not attempt to hold the Governor-General to his word.

Captain Belo also stated that during the conversation Saro asked him to carry a.22 rifle through VIP Lounge for him, a request which Belo refused. Saro denied that this exchange ever took place. On 10 April the accused returned to Honiara. At Brisbane airport they again met Captain Belo, and according to Belo again asked him to carry their rifles through the VIP Lounge. Belo again refused. Different versions of this conversation were put forward by the accused. Saro said that they approached Belo to ask generally about their VIP treatment as discussed in the hotel bar. Belo said, according to Saro, that they should check in as ordinary passengers and he would "sort out things". Baekalia went further and said that Belo told them that they would embark as ordinary passengers and disembark at Honiara as VIPs.

There is considerable conflict in the evidence about what happened on the plane. The defence case is that Belo approached Saro at the rear of the plane and told him that they could not go through the VIP lounge but that S/Sgt Akao would carry their rifles through the VIP lounge while the accused cleared customs in the normal way. The prosecution case is that Baekalia approached Belo as he was buying cigarettes and asked him to carry the rifles through the VIP Lounge. Belo refused again, and Baekalia then asked him to send Akao to see him, which Belo did.

Akao's evidence did not support this. Akao denied speaking to the accused on the plane and alleged that Belo went to speak to the accused. Upon his return he instructed Akao to take the rifles through the VIP lounge. This allegation was put to Belo and strenuously denied.

This is an important conflict of evidence which relates directly to the credibility of the accused. I found Captain Belo to be a forthright and honest witness, whose evidence had the ring of truth. I was less impressed by S/Sgt Akao. I do not think he was telling the whole truth, and where there is a conflict I prefer the evidence of Belo. Both accused deny ever having asked Belo to carry their firearms through the VIP lounge, yet if that were true there can be no reason why Belo should later approach them and volunteer to carry the rifles.

There is a direct and substantial conflict between Baekalia's evidence and Belo's. The defence case amounts to a most serious imputation upon Belo's character which I am unable to accept. It is implied that he was the author and instigator of a scheme to smuggle the rifles through the VIP lounge. Although there is no evidence that such a scheme could be of any benefit to him, and although neither accused was able to give any reason why Belo should lie about them, Baekalia insisted that Belo was lying under oath. Having observed both Belo and the accused giving evidence I am completely unable to accept that Belo was 'lying'. I believe and accept his evidence. Where there is any conflict between his evidence and that of the accused I believe Belo and I disbelieve the accused.

S/Sgt Akao I found wholly unimpressive. Admitting that he told the customs officer that the rifles belonged to the Governor-General when he well knew that they were Saro's he was quite unable to give any satisfactory explanation for the lie. I am sure that he is far from being an innocent witness and I find his evidence irredeemably tainted.

The facts surrounding the accused's arrival at Honiara are not in dispute. Both accused went through normal customs channels with all their luggage except the rifles. The rifles were taken by Akao through the VIP lounge and thence to the armoury at Rove.

Both accused filled in a Passenger Baggage Declaration form as required by customs. In answer to the question "Do you have in your possession goods which may be prohibited or restricted for example...dangerous weapons?" both answered "No". When the customs officer, Nellie Toaki, asked the accused if the declarations were true both answered" Yes".

Upon clearing customs both accused left the airport terminal without further checking for the rifles or Akao. From there it is alleged that the rifles were collected by the accused separately in circumstances which will be of relevance later.

At this stage I feel I can dispose quite simply of the charges against Saro. He has already pleaded guilty to the charge under section 19 Firearms and Ammunition Act. It is submitted by the defence that the offence under s.213 (a) Customs and Excise Act requires mens rea as to the consequences of making the false declaration; i.e. proof that the accused intended to deceive. I cannot accept that any such requirement is involved. The section is in my view one of strict liability and though I can accept that on the authority of Warner v MPC [1969] 2 A.C. 256 mens rea as to the falsity of the declaration is required, I cannot see that the question arises. In Saro's case I am satisfied beyond any reasonable doubt that at the time he made the declaration to Nellie Toaki he was in possession of a rifle and that he falsely stated, knowing it to be false, that he was not in possession of any dangerous weapon.

It is further argued by the defence that the prosecution have failed to prove that the declaration was made "in any matter relating to the customs laws or under the control and management of the comptroller". With respect, I feel that this argument is misguided. The words quoted from section 213 in my view add nothing to the rest of the section apart from a requirement that the matter in relation to which the declaration is made is lawfully within the authority of H.M. Customs. In so far as this is a question of fact the matter is adequately dealt with by the evidence of Nellie Toaki. The defence have not adduced any evidence on the issue for the prosecution to disprove and 1 am satisfied that the prosecution have proved to the required standard that the declarations made by the accused were in matters relating to the customs laws. I have not been addressed as to any issue of law arising in connection with the declaration or its validity and I consequently find Saro guilty and convicted on count two.

The final charge against him is that under section 214(e) Customs and Excise Act of being knowingly concerned in the fraudulent evasion of duty. The proved facts are that it was Saro who approached Belo to carry his rifle through the VIP lounge. Despite the fact that Belo refused to become involved the rifle was carried through by Akao. Saro admitted that he knew that an import permit was required and knew the requirements of s.15 of the Firearms and Ammunition Act. He also knew that duty was payable on firearms. He had the import permit with him or among his baggage when he passed through customs, yet never gave it to Akao though he claimed to believe that Akao was going to declare the rifle on his behalf. Upon clearing customs he did not bother to look for Akao or check customs for his rifle, even though according to his evidence he should have believed that his rifle would be with customs waiting for the import permit to be produced.

Upon later recovering the rifle and it makes no difference for this purpose whether the rifle was recovered on the 10 or 11 April, Saro claimed that he forgot to inform customs. He did not forget to go to the Firearms Licensing Officer and persuade him to falsify the import permit, and though he claimed to have intended to pay duty, made no offer to pay duty or make a proper declaration when he was approached by David Dakei seven days later.

I need go no further. I found Saro's explanations completely incredible. To my mind the proved facts are capable of no reasonable explanation consistent with innocence. The only possible inference that 1 can draw is that Saro intended with the connivance of Akao to send his rifle through the VIP lounge in order to evade duty. Had he intended otherwise there would have been no need to send the rifle, but not his other bags, through the VIP lounge. Even if, inexplicably, he had though it necessary to send the rifle with Akao he would have given the import licence to Akao or at least checked with customs upon clearing the arrivals hall.

I find Saro guilty and convicted on count three and all counts.

I turn now to consider the case against Baekalia. Counts one and two can be considered together because they both depend upon whether I find as a fact that at the time he passed through customs Baekalia was in possession of a rifle. If he was in possession of a rifle then it is quite clear that he failed to declare it and made a false declaration and there can be no further defence.

Baekalia claims that he merely carried the money to buy the rifle on behalf of a wantok, Peter Taefilia. The rifle was purchased and carried by Saro. Baekalia was not therefore in possession of the rifle at the material time.

In deciding whether he was in fact in possession I am entitled to examine the whole of the circumstances surrounding Baekalia's dealings with the rifle. It is clear, and I accept, that Baekalia was never the owner of the rifle. Ownership is however not the crucial factor. It is strong evidence of possession, but it is quite possible for a person to be in possession of an item without necessary owning it. Having bought the rifle the accused claims to have left it with Saro to bring it back to Honiara since Saro had an import permit. The only evidence led by the prosecution relating to events before arrival in Honiara which tends to disprove this is the evidence that Baekalia approached Belo about the rifle on the plane. This I do not feel to be conclusive. Of somewhat more relevance is the evidence surrounding Baekalia's conduct after arrival. It is alleged by the prosecution that Baekalia himself instructed the eighth prosecution witness to bring the rifle to him in his office on 11 April. This is strongly denied by the defence, though on the other hand it is admitted that when David Dakei contacted Baekalia on the telephone, Baekalia offered to recover the rifle, and did not deny importing it.

A great deal of evidence was led by the defence to cast doubt upon the eighth prosecution witness' testimony. Though I am unable to see any reason why the witness should lie to the court, and though I am bound to say that I did not find either Baekalia or Supt. Ramoni to be entirely convincing witnesses, I feel that there is certainly a doubt as to the veracity of his evidence. I am in doubt as to whether Baekalia collected the rifle from the armoury.

Again reminding myself that the prosecution must prove the matter of possession beyond reasonable doubt I feel that there is a reasonable doubt in this case as to whether Baekalia was in possession of a rifle at the material time. The proven facts are equally consistent with his version of events, and I must therefore acquit Baekalia on counts one and two.

Count four is importing a firearm without a permit contrary to section 15 Firearms and Ammunition Act. It is admitted that Baekalia did not have an import permit for a firearm. His defence is that he was not the importer of the firearm. Section 15 Firearms and Ammunition Act and the definitions of "importer" and "import" in the Customs Act and the Interpretation Act 1978 require to be read carefully together. While it may be arguable that the accused imported the firearm in that he caused it to be brought into the country, I feel that to make any sense at all section 15 must be construed in such a way that the liability for infringement rests on the "importer" as defined in the Customs Act. That is "the owner or any other person possessed of or beneficially interested in any goods at and from the time of importation thereof until the same are duly delivered out of the charge of the proper officer". For reasons already explained in relation to counts one and two I do not feel that it has been sufficiently proved that Baekalia is caught by this definition. I must therefore find him not guilty and he is acquitted on count four.

The final charge is being knowingly concerned in the fraudulent evasion of duty. This section casts a wide net and is worded similarly to sections of the U.K. Customs and Excise Acts. The authorities clearly show, and indeed it is a matter of common sense, that on a charge of being knowingly concerned in fraudulent evasion it does not have to be proved that the accused was involved in the importation itself. There must of course be a sufficient nexus between the activities of the accused and the importation. In terms of mens rea what is required to be proved is that the accused knows that there is a scheme to fraudulently evade duty and that he knowingly takes part in the operation. Fraudulent implies dishonest conduct deliberately intended to evade the duty chargeable on the goods.

In this case the prosecution did not seem entirely clear about what it was they were trying to prove in relation to this charge. Nor did they clearly set out the facts upon which it is alleged that Baekalia committed the offence.

There is strong evidence, which I accept, that Baekalia asked Belo to take the rifles through the VIP lounge. I cannot see that there is any valid explanation for this other than that the accused intended that the rifles would thereby be allowed in free of duty. Baekalia was with Saro at all material times. He well knew that Saro was bringing in one rifle for himself and was carrying another one for Taefilia. It is inconceivable in my view that the accused did not know what was afoot. The difficulty however is that apart from his approach to Belo I cannot see that the prosecution have proved any overt act done by Baekalia in the pursuance of the fraudulent evasion by Saro. I do not think that the evidence goes quite far enough to establish a sufficient nexus to make the accused liable either as a principal or as an aider and abetter. While the facts point strongly towards his involvement, and there is the utmost suspicion of guilt I feel that the evidence falls just, but only just, short of the requisite high standard of proof beyond reasonable doubt. After considerable thought I therefore find Baekalia not guilty and he is acquitted on all charges.