R v Solodia [2006] SBMC 2; 2821.2005 (31 March 2006)

IN THE PRINCIPAL MAGISTRATE’S COURT
HELD AT HONIARA IN THE SOLOMON ISLANDS

Case No 2821/05

R

-v-

PHILIP SOLODIA

Before Deputy Chief Magistrate KF Chapman

31 March 2006

Mr Little for the DPP
Mr Ashley for the Defendant

JUDGMENT

Introduction

This matter first came before me on 19 October 2005. There was some confusion as to the charges that the defendant was facing. This was clarified. The prosecution sought to rely upon a statement made by the defendant. The defendant took objection. In a separate judgment I have delivered my reasons for admitting the statement into evidence.

Just prior to closing his case the prosecutor sought to amend the period of time the offence alleged in Count 2 is said to have taken place from between 1 January 2002 and 31 December 2002 to between 1 January 2001 and 31 December 2003.

Although the defendant objected to this on the grounds of prejudice I was satisfied the prosecution was not relying on any new evidence and thus the defendant in reality was not facing anything new. I was satisfied that any prejudice that the defendant might suffer could be meet by an adjournment. Accordingly I allowed the amendment and granted the defendant an adjournment.

The defendant faces two charges. In Count 1 it is alleged between October 2004 and February 2005 he permitted commercial gaming to take place on premises without a valid permit contrary to S 9 of the Gaming and Lotteries Act (the Act).

In Count 2 it is alleged between 1 January 2001 and 31 December 2003 he stole a 21 foot ray boat and a 25 horsepower Yamaha outboard motor the property of the RSIP contrary to S 261 of the Penal Code.

The matter has been adjourned on a number of occasions to allow the defendant to call two witnesses. Apart from two occasions when it was adjourned because of illness the matter was adjourned at the request of the defendant.

On the 3 March 2006 the matter was listed for 1-30pm. Neither defence counsel, the defendant nor his witnesses were present. On making enquiries I was informed that defence counsel had rung the Court and had spoken to His Worship Mr Upwe. The message was that counsel was meeting a plane from PNG and would be late. It was further stated that the defendant had not travelled from Auki.

I convened the Court at 2.49pm having provided more than enough time for defence counsel to attend. At that time neither the defendant, his counsel nor his witnesses were in attendance. Counsel for the DPP informed he had rung the airport and the plane from PNG had landed at 12.22pm.

At that time counsel for the DPP sought leave to reopen his case and call a further witness. The witness to be called was for the purpose of identifying an invoice book which had been obtained from AM Small Engine Workshop and related to the invoices which were tendered into evidence by the defendant.

The difficulty faced by counsel for the DPP was that the witness would be leaving the Solomon Islands for good on 7 March 2006. In the circumstances I allowed counsel to reopen his case and call the witness to identify and put the invoice book into evidence. As the book speaks for itself I was of the view the defendant would not be unduly prejudiced but the prejudice to the prosecution would be significant if I denied the request. In fact the last witness called by the defendant was the author of the book and no prejudice resulted.

The Law as to Count 1

There are a number of sections from the Gaming and Lotteries Act that are relevant and I have included the relevant parts below.

Section 2

...

"commercial gaming" means the playing of any game of chance whether played by any gaming machine or otherwise;

...

"game of chance" includes a game of chance and skill combined and a pretended game of chance or of chance and skill combined, but does not include any athletic game or sport;

"gaming" means the playing of a game of chance for winnings in money or money's worth and includes commercial gaming;

...

Section 3

3.—(1) Subject to the provisions of this Act, any gaming shall be lawful if, but only if, it is conducted in accordance with the following conditions, that is to say—

(a) that either—

(i) the chances in the game are equally favourable to all the players; or

(ii) the gaming is so conducted that the chances therein are equally favourable to all the players; and

(b) that no money or money's worth which any of the players puts down as stakes, or pays by way of losses, or exchanges for tokens used in playing the game, is disposed of otherwise than by payment to a player as winnings; and

(c) that no other payment in money or money's worth is required for a person to take part in the gaming.

(2) If in any proceedings under this section evidence is adduced that gaming took place on any premises and either—

(a) that the game was, or was a variant of or of a, similar nature to, a game which is capable of being played in accordance with the ordinary rules thereof in such a manner that the chances therein are not equally favourable to all the players, and that ten or more persons were present at the gaming; or

(b) that a payment of money or money's worth was required in order to obtain access to the premises,

then, subject to subsection (7), it shall be held that the gaming was unlawful gaming unless it is proved that the gaming was conducted in accordance with the conditions set out in subsection (1).

...

Section 9

9. Any person who conducts, permits or causes commercial gaming to take place in any premises without a valid permit shall be guilty of an offence and liable on summary conviction to a fine of two thousand dollars or to imprisonment for two years.

The facts not in dispute as to Count 1

A statement of Daniel Kuata, Exhibit 4, was tendered by consent. Mr Kuata verifies the defendant is not recorded as ever holding a permit to conduct Commercial Gaming.

The facts in dispute as to Count 1

The first witness called by the prosecution was John S Chevis. He was the police officer who conducted the interview of the defendant and his evidence was confined to that issue.

At Q35-Q63 the defendant told the police officer that monies recorded in a note pad in his possession related to card games where a game called Laka is usually played. At Q175-Q238 the defendant said the card games took place at a building called the Kerosene House. He said he leased this house and the money he collected from the card games went to renting the house.

The rent on the house was $700 per month. The money he collected depended on the amount people bet. He says he paid the person who collected the commission for him. The defendant conceded Laka is a game of chance and at least one game was played on the 16 November.

In Q368-Q372 the defendant admitted he did not have a license to run a gaming house and he had not applied for one. He made some concession that he ran a gaming house prior to 16 November 2005 at the Kerosene House.

The next witness was Andrew Dau. He confirmed what the defendant said in his statement. He went further and gave evidence that he collected commission from the bets on two occasions amounting to $75 and $90. He paid the commission to the defendant and received $20 from him.

He stated that if you did not bet you could not play and the winner took all the bets less the commission.

Laurence Sale gave evidence that he played card games at the Kerosene House. He said two games were played Laka and Kura. At times players would be 10 or more. He would bet between $1 and at times up to $100 per game.

Aleck Tona was a reluctant witness who had to be reminded of a previous statement he had made. He rented the Kerosene House to the defendant at $700 per month. He would collect the rent personally from the defendant.

On several occasions he saw men playing card games at the house and on some occasions the room was full.

The last prosecution witness on Count 1 was George Rifasia. He has played cards at the Kerosene House and would bet between $5 and $50. He has lost up to $300 and won up to $1000. He stated you did not pay before the game but a commission was taken from the bets.

The defendant gave evidence. His evidence tended to support the fact that card games were played in the Kerosene House that he said was rented by he and his family. He did not deny monies were taken from the stakes put down by the players.

Application of facts to the law as to Count 1

From the description of the card games given by the defendant the games would fall within the definition of a game of chance as defined by Section 2 of the Act. The other witnesses called by the prosecution confirmed this evidence.

On the evidence before me it is clear the defendant did not hold a permit to conduct commercial gaming.

If gaming is conducted in accordance with Section 3 of the Act it is lawful. Although doubtful, the games played at the Kerosene House may comply with section 3 (1) (a) (i) or (ii). However, on some if not most games, a commission was taken out of the money put down as stakes. The defendant confirmed this when he stated that the money referred to in the book was money collected from those playing card games.

I am satisfied, on the facts that money was disposed of otherwise than by payment of winnings to players and contrary to section 3 (1) (b). Accordingly the gaming was not lawful.

The defendant leased the Kerosene House. I am satisfied he knew commercial gaming took place there and he permitted the games to take place. He either himself, or through an agent, collected a "commission" from the stakes the players put down. I am satisfied to the degree required he permitted commercial gaming to take place in the Kerosene House without a valid permit.

Conclusion as to Count 1

I am satisfied that the charge has been made out.

The Law as to Count 2

Section 261 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:

Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, of, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.’ (emphasis added)

In R v Langmead [1864] EngR 47; (1864) Le & Ca 427; 169 ER 1459 Blackburn J stated at pages 441 and 1464 respectively:

‘I do not agree ... that recent possession is not as vehement evidence of receiving as of stealing. When it has been shown that the property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances.’

In R v Brain otherwise Jackson (1918) 13 Cr App R 197 Avory J, delivering the judgment of the Court, stated at pages 198 – 199:

‘It is quite true that if a man is found in possession of recently stolen property it may give rise to a presumption either that he is the person who actually stole it or that he received it knowing it to have been stolen. What is "recent" stealing depends on the character of the goods. Some naturally change hands quicker than others. But after the presumption has been raised it is still the duty of the judge to tell the jury that it is only a presumption which calls for some explanation by the prisoner. If he gives no explanation or one which the jury does not believe, the jury may presume he is the person who stole the property or received it knowing it to have been stolen.’ (emphasis added)

In R v Adachi Reqeo (Unrep. Criminal Case No. 96 of 1998) Lungole-Awich J stated at page 4:

‘The essence of the offence of conversion, which was adopted in s.271 of our Penal Code from the English Larceny Act of 1916, is that the property had been received or was in the possession of the accused lawfully and that he fraudulently converted it to his own use or to the use of some other person. The most significant element in conversion, like in larceny, embezzlement and other related offences in the English Larceny Act 1916 and our Penal Code is the fraudulent intent. The fraudulent intent is disclosed when one deals with the property of another, without that others consent and well knowing that it will prejudice the interest of that other person.

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.

[...]

[...] I have already dealt with the element of honest claim of right. These two elements must go together and one cannot go without the other. A person cannot successfully raise the defence by saying that he had an intention to return the property if he used the property without the consent of the owner or without an honest claim of right. Similarly, a person who has an honest claim of right cannot be successful in raising the defence under s.8 unless he has acted without intention to defraud. Compare R v Hobart Magalu [1974] PNGLR 188 at 200. The legislature has clearly set out these matters.

The words "intent to defraud" within the context of s.8 of the Penal Code, means that not only must a person deal with property based on an honest claim of right, but he must show that he had no intention to deprive the owner of the property. This is a question of fact. The manner in which the property is dealt with is relevant. A person who intends to restore or return property and has ability to do so may successfully raise the element. But this may not always be the case. It may be shown that such a person may have failed to fulfil the intention between the date of commission of the offence and trial. This conduct may be contrary to any intention to return or pay back property. On the other hand, a person who has no ability to pay may collect enough money from relatives in the village and repay the money as he intended. As I have indicated, it is a question of fact and each case will be decided on its own facts.’ (emphasis added)

The facts in dispute as to Count 2

The first witness called by the prosecution was Police Officer Hayter. He caused various photographs to be taken of a Ray Boat. These became exhibits 5 (a) - (c). I have no doubt this was the boat that belongs to the RSIP referred to in the complaint.

The second witness was Jimmy Misimake who is also a police officer. He said he regularly skippered the boat between 1998 and 2000. In 2000/1 he says it was removed from behind the police station.

He saw the boat again in 2004 at Auki Island. It was under a tree and upside down. The defendant has a house on the island. The boat was seized by the police.

Festus Tagini gave evidence. He is a retired Superintendent of police. He was aware of the boat and the fact it was missing. He gave evidence that in 2001 it was shifted to a leaf hut built for the exclusive use of the defendant. He was shown a report signed by Philip Idufooa that is exhibit 7. He was aware of the report and identified the signature of Mr Idufooa.

The report identifies items said to have been taken by the defendant. It includes the boat and motor. In my view little weight can be attached to the assertions made in the report, as they are bald allegation unsupported by any material evidence.

Stephen Kafano, who was a Superintendent of police, gave evidence of a fuel business run by the defendant in which the defendant was seen to use the boat and the motor.

After the close of the prosecution case counsel for the DPP applied to reopen his case and for the reasons previously outline that request was granted. The witness, Mr Auma identified and invoice book he had obtained from a person at the premises of AM Small Engine Workshop. The book became exhibit A3.

The defendant gave evidence that he took the boat and motor into his custody. This he said was for safe keeping as he considered them to be at risk during the tensions. The first witness called by the defendant, a detective sergeant, gave evidence to the effect that the defendant had taken the boat and motor into custody for safe keeping. Much of his evidence was hearsay and I found his evidence to be unreliable.

Even if the evidence given by the defendant and his witnesses were to be believed, and I do not accept it, the way the defendant dealt with the boat and motor is telling. In the course of the hearing the defendant gave evidence that the motor was still in his custody at his home. This appears to be the first time he has said this. Subsequently the police seized the motor.

His evidence was that he used both the boat and motor to transport his personal items from the Police Station to his home village. He further gave evidence that he caused repairs to be made to the boat and motor on 15 & 20 February 2002. He tendered two invoice in support of this namely Invoice No 075948 (exhibit A 1) and Invoice No 075951 (exhibit A 2).

When exhibit A 3 is examined it will be seen that the originals of both Invoice Nos 075948 and 075951 are missing and the duplicates which are retained are blank. It should be noted that these are not the only duplicates which remain in the book and are blank but it was clearly not the normal practice.

It should also be noted that the invoices contained in the book range between 17 June 2005 and 6 December 2005. None are dated 2002. This together with the rather new look of exhibits A 1 & 2 raises suspicions as to their authenticity but without more the evidence is not conclusive.

The last witness called by the defendant was a proprietor of AM Small Engine Workshop and identified the invoice book as his. He said he completed invoices 075948 and 075951 in October 2005 at the request of the defendant. He says he carried out the repairs and copied the information onto the invoices from a piece of paper he had made out in 2002. I do not accept his evidence and I note that it is not consistent with the evidence of the defendant.

On the 18 March 2002, about a month after the repair work is said to have been carried out, the defendant made a claim to the Commissioner of Police for reimbursement of expenses he had paid on behalf of the RSIP. Significantly the claim did not include a claim for repairs to the boat or motor.

In the claim he did mention he had retained some six drums of fuel but no mention was made of the boat and motor.

The defendant seems to suggest he kept the boat and motor as some sort of security for the reimbursement of the monies he paid for the repairs. No documents have been tendered to support this claim. Indeed the documentary evidence would seem to be against such a claim.

Application of the facts to the law as to Count 2

On the evidence I am satisfied the boat and motor had been used by the defendant to transport fuel and that the defendant conducted a fuel business. On his own admission he also used them to transport his personal property to his village. I am further satisfied that in 2001 the boat was shifted to a leaf hut built exclusively for the use of the defendant. The hut was in the proximity of the police station. I do not accept the defendant’s explanation for this.

The boat was seen in 2004 on Auki Island turned upside down. The defendant owns a house on this island. The motor had not been located and its whereabouts appeared to be unknown before the defendant announced during the course of his evidence that it was held at his house. The way in which the defendant dealt with the boat and motor, in my view, are not consistent with any honest claim the defendant may assert.

I am not persuaded on the evidence that the defendant had any lawful reason to retain the boat or motor. These have been in the possession of the defendant for a considerable period of time and he has put them to his own personal use.

I accept that during the tensions the normal government services broke down. This may have made it difficult for the defendant to seek the usual permission for the use of the boat and motor and to have appropriate repairs carried out upon them. Whilst difficult it was not impossible and there is no evidence the defendant made any attempts in this regard.

The tensions have now been over for some time and the defendant made no attempt to return the boat and motor. Notwithstanding his evidence, and that of his witnesses, I do not accept he made a claim for reimbursement for the repairs. In any event I am far from persuaded that the repairs are genuine. Further I do not accept he had any honest belief that he had a claim of right nor that it has endured all of these years.

On the evidence before me I am satisfied to the degree required that:

❑ the boat and the motor was in the defendants possession
❑ he had used them for his benefit with out permission
❑ he had formed the necessary intent

Conclusion as to Count 2

On the evidence before me I am satisfied that this charge has been made out