R v Kelly [2005] SBMC 9; Criminal Case No 215 (2 September 2005)

IN THE MAGISTRATES COURT OF SOLOMON ISLANDS
HELD AT GIZO

Case No 215/05

R

-v-

Jim Kelly

Before Deputy Chief Magistrate K F Chapman

2 September 2005

Mr H Kausimae for the DPP
Ms E Garo for the Defendant

JUDGMENT

Introduction

The defendant has four counts against him all being demanding property with menaces pursuant to S295

(read counts)

The Law

Section 295 of the Penal Code (Ch. 26) states:

‘Any person who with menaces or by force demands of any person anything capable of being stolen is guilty of a felony, and shall be liable to imprisonment for five years.’

In Treacy v Director of Public Prosecutions (1971) 55 CrAppR 113 [[1971] 2 WLR 112; [1971] 1 All ER 110; [1971] AC 537] Lord Morris commented at page 130:

‘The offence is committed [...] if a person "makes any unwarranted demand with menaces". The act which is made an offence involves the making of a demand. How, then, does a person make a demand? He does so by communicating a request. He may do this by speaking to someone. He may do it in other ways. But the notion of making an unwarranted demand with menaces involves that the demand is made to or of someone who could comply with it and who could be influenced by the menaces that accompany the demand. The act of making the demand is not, in my view, committed until it is communicated to the person who is being unjustifiably menaced. There must be contact between the demander and the victim.’

Section 8 of the Penal Code (Ch. 26) states:

‘A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.’ (emphasis added)

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).

The facts in dispute

The second prosecution witness to give evidence was a Mr K Bizit. He works in the stores department of KTC. Part of his duties is to pump fuel and keep a record of the fuel he issues.

His evidence is clear that he issued the following fuel to the defendant: -

1. 11/2/05 25 litres
2. 22/2/05 30 litres
3. 4/3/05 20 litres
4. 26/3/05 80 litres
   

These amounts are recorded against the defendant’s name in a Store Issue Note that is Exhibit 1. On the evidence before me I accept fuel in the amounts recorded was issued to the defendant on the dates mentioned.

Recorded against the Driver’s Name in Exhibit 1 are the words Bougainville L. Owner. In cross-examination Mr Bizit agreed those words mean Bougainville Land Owners. I do not accept that fact alters the evidence given by the prosecution witness.

On the first three occasions Mr Bizit issued the fuel on the instructions of Mr Lee, the camp manager, and on the last occasion Mr Wong, the Supervisor. No money was received from the defendant. Apart from an argument between the Defendant and Mr Lee on 4/3/05 Mr Bizit is unable to comment on the conversations between the defendant and Mr Lee. On that occasion the argument was between the two over an additional 5litres. I accept his evidence that the boss was scared and asked him to pump the additional 5 litres.

The Defendants version of the facts differs considerably from the version of events given by the prosecution witness. I have had the advantage of seeing and hearing the witness give their evidence. In the case of the defendant I found he often took a while to answer questions and did not always answer the question put. I am conscious he was giving his evidence through an interpreter and that may have had an impact on the way he gave his evidence. The interpreter was the same person throughout although there was a marked difference between the way the Defendant gave his evidence in chief as opposed to his evidence in cross-examination. Having taken all of the relevant factors into account I am of the view the Defendant was an evasive witness. To the extent his evidence differs from that of the prosecution witnesses I accept the evidence of the prosecution witnesses and reject his.

The first prosecution witness to give evidence was Mr Lee Kee Nam. He is the camp manager of KTC. He was able to give evidence of the supply of the fuel on the first three occasions but not on the fourth as a Mr Wong dealt with that.

Mr Lee gave evidence that on each of the three occasions he instructed fuel to be supplied to the defendant it was because the defendant demanded it. The defendant spoke of bad things. He said property of the company worth more than what was demanded would be damaged if the fuel and money were not given. Mr Lee said on a number of occasions he was concerned and worried about this. He also said that on each occasion the defendant demanded money in the sum of $7,000. He did not give him any money on the first occasion as he had non but on the second occasion he gave him $2,500 and the third $1,500. I accept his evidence.

In cross-examination it was suggested to Mr Lee that the fuel and money was given against royalty payments or as part payment for the use of the defendants boat or on credit. Mr Lee rejected those suggestions and on the evidence I accept that to be so.

Mr Lee gave evidence that there was a meeting with a Bougainville Chief and trustees about obtaining assurances regarding security. I accept a meeting took place and that the Chief was given 25 litres of petrol to return home. An entry to that effect is to be found in Exhibit 1. That entry is in addition to the entry of 25 litres to the Defendant.

I accept the evidence of Mr Timothy Mailaga that on two occasions he saw and heard the Defendant seek petrol from Mr Lee. On each occasion he said the Defendant was angry and on one occasion he spoke of being a landowner. He also saw that Mr Lee looked frighten.

Mr Wong gave evidence that on the 28/3/05 the Defendant came to the camp and asked for $3000 said to be owed by Mr Lee for the hire of his boat. Mr Wong told the Defendant it was not his business and he would have to wait until Mr Lee returned. He latter gave him the $3,000 because the Defendant became angry. He said the Defendant had said he had destroyed the camp before and that made him change his mind to avoid destruction of the camp. He also gave him 80ltr of petrol as the Defendant had told him it was for the safety of the Company property. Even if the Defendant was owed the $3,000 as claimed, which I do not accept, the aggressive way he sought to recover it would disentitle him to any honest claim of right.

Mr Wong agreed he had issued a receipt (Exhibit 2). The only thing he wrote on it was the date and the name of the Defendant, the Defendant wrote the rest.

Application of facts to the law

Clearly petrol and money are things capable of being stolen.

I am satisfied that in relation to the first three counts Mr Lee would not have given the defendant petrol and in relation to the second and third counts would not have given the money if it were not for the fact that the Defendant demanded it of him and said bad things would happen and company property worth more than $7,000 would be damaged if the petrol and money was not supplied.

As to the last count I am satisfied that Mr Wong would not have given the money and petrol to the Defendant if it had not been for the fact that the Defendant demanded it of him and at the time said he had damaged Company property before and that the petrol was for the security of Company assets.

Conclusion

I am satisfied that in each case the Defendant demanded the petrol and the money and in each case that was accompanied by anger and threatening words. Given the context in which this was done I am satisfied to the degree required that the money and petrol were demanded with menaces.

I therefore find each charge proved.