R v Sunga [2005] SBMC 10; Criminal Case 1083.2005 (30 September 2005)

IN THE CENTRAL MAGISTRATES COURT OF THE SOLOMON ISLANDS

Case No 1083/05

R

-v-

GEORGE PETER SUNGA

Before Deputy Chief Magistrate K F Chapman

30 September 2005

JUDGMENT

Introduction

The charge against the defendant was that he stole cash of $200 the property of Douglas Niafuni

The Law

Section 261 (1) of the Penal Code (Ch. 26) states:

‘(1) Stealing for which no special punishment is provided under this Code or any other Act for the time being in force is simple larceny and a felony punishable with imprisonment for five years.

Section 258(1) of the Penal Code (Ch. 26) states:

‘A person steals who, without the consent of the owner, fraudulently and without claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:

In Toritelia v R [1987] SILR 4 Kapi JA stated at pages 31 - 33:

‘What is an honest claim of right? Section 8 of the Penal Code is similar to the wording of s. 22 of the Queensland Criminal Code. Section 23 of Papua New Guinea Code is in exact terms as the Queensland provision. I would adopt the decisions from these jurisdictions on the question of the meaning and application of this defence. In particular, I adopt the words of Gibbs, J as he then was in the case of The Queen v Pollard [1962] QWN 13,

"It is well settled that a claim of right sufficient to relieve a person of criminal responsibility need only be honest and need not be reasonable (Clerkson v Aspinall; Ex parte Aspinall [1950] StRQd 79, at 89); ‘the fact that it is wrongheaded does not matter’: R v Gilson and Cohen [1944] 29 CrAppR 174 at 180). In Rex v Bernard [1938] 2 KB 264 at 270 the Court of Criminal Appeal said that a person has such a claim of right ‘if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact.

[...]

The facts in dispute

The defendant was the driver of a bus. John, who said there was no arrangement with him for the defendant to request any credit, owned the bus. Further he said that he did not expect the defendant to refuel the bus from the defendant’s own pocket.

On the 17 December 2004 the defendant handed over the bus driving to Tony, as he was not feeling well. In the complaint it is stated that the $200, said to be stolen, was the property of Douglas Niafuni.

Douglas gave evidence that his uncle is John who owns the bus and that he was the conductor of the bus during the school holidays. He said the defendant refuelled the bus on the 17 December 2004 with $70 from his own pocket. He said the normal practice was that the conductor had the responsibility to refuel the bus at the end of the day and to take the money for the fuel out of the day’s takings.

Whilst I accept the normal practice was for the conductor to refuel the bus I accept that at least on one occasion the defendant refuelled the bus. It was suggested this might have been necessary because of the way he was driving. I am not satisfied on the evidence that that was necessarily the case.

Having accepted the defendant had expended some of his own money on refuelling the bus it is not unreasonable for him to expect to be refunded for this in the normal course.

Both Tony and Douglas gave evidence that on the 18 December 2004 they saw the defendant place his hand into the conductor’s basket and take out money. On the evidence before me I am satisfied it amounted to between $150 and $200. I am however not satisfied that Douglas was the owner of the money as alleged.

Douglas was the conductor of the bus, he was not the owner. He referred to the day’s takings. He said he did not stop the defendant taking the money as he assumed it would be all right with the boss.

On the evidence before me it seems highly likely the bus owner owned the money and not the conductor but that is far from clear.

Application of facts to the law

The complainant specifically alleges the money was owned by Douglas Niafuni. As I have already said I am not satisfied on the evidence to the degree require that he owned the money.

Further the evidence of the prosecution supports the fact that the defendant spent at least $70 of his own money in refuelling the bus. He says he spent $150. Although I accept it was not the usual practice for the driver to refuel the bus I am not satisfied that it was forbidden. Whilst the evidence of the prosecution suggests the extra fuel was required because of the way the defendant was driving I am not satisfied that that was the case.

In the circumstances I do not consider it unreasonable for the defendant to make a claim of right. On the prosecution evidence there is a discrepancy between the amount taken and the amount said to be spent by the defendant on fuel for the bus. However on the totality of the evidence I am satisfied the defendants claim of right was made in good faith.

In my view this is a matter that should properly be dealt with in the civil jurisdiction rather than the criminal jurisdiction.

Conclusion

For the reasons given I am not satisfied to the degree required that the charge has been proved and accordingly would dismiss the matter.