Cassel and Lind v Public Prosecutor [1983] VULawRp 2; [1980-1994] Van LR 67 (25 March 1983)

[1980-1994] Van LR 67

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

Appeal Case No. 6 of 1982

BETWEEN:

KENNETH CHARLES CASSEL
Appellant

AND:

IAN GEORGE LIND
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: The Honourable Mr Justice L Cazendres
The Honourable Mr. Justice JR Jones

Counsel: Mr D McFarlane, Counsel for Appellants
Mr F Cote, Public Prosecutor

Miss D Toulet, Interpreter
Miss JR Walsh, Chief Registrar

JUDGMENT

[CRIMINAL LAW - consideration of "lawful authority" - summing up - ADMIRALTY - termination of bareboat charter - repossession of vessel]

Kenneth Charles Cassel and Ian George Lind were charged before the Supreme Court with theft of the vessel "Glenelg", by violent means, an offence punishable under section 137 of the Penal Code with imprisonment for twenty years.

They were both convicted not for this offence but for the lesser offence in section 126(b) of the Penal Code which reads:-

"No person shall.......

(b) without lawful authority use any property of another notwithstanding that he does not have the intention permanently to deprive the owner of it."

The maximum penalty for this offence is imprisonment for eight years. Mr Cassel was sentenced to three and a half years imprisonment with the alternative of paying a fine of 290,000VT plus 50,000VT costs. Mr Lind was sentenced to two (2) years imprisonment with the alternative of paying a fine of 200,000VT plus 50,000VT costs. Both have appealed against their convictions and sentences.

The basic facts are that on the 1st of October 1979, a Bareboat Charter (Exhibit 7) was signed on behalf of Delphin Shipping (Pacific) Pty Limited, a company wholly owned by Mr Cassel and his family, and on behalf of Glenelg Limited, the lessors. There was a further agreement (Exhibit 28) being an option to buy the vessel for A$25,000.

At the date of signing the Charter the Glenelg was not yet in survey. Mr Cassel was doing the repairs to bring it up to survey standard. It was therefore agreed orally that the Bareboat Charter should not commence until the Glenelg was in survey, that is to say registered with Germanischer Lloyd of Hamburg. The certificate of registration of classification is Exhibit 15. The period of registration is given as September 1979 to the 10th of October 1980.

The rent for the Charter was agreed at A$6,352.00 monthly. The first rent was paid in October and no further rent was paid.

On the 3rd of January 1980, Glenelg Limited gave notice to Delphin Shipping (Pacific) Limited of termination of the lease. The notice is Exhibit 9. It is addressed c/o J.M Leversedge of Investors Trust Limited who was authorised to sign as agent of Delphin Shipping (Pacific) Limited and so did so. The vessel was at this time at sea.

Some months later the Glenelg was arrested by Papua New Guinea troops with Mr Cassel at Santo and later still brought to Vila where it was arrested on the 14th August 1980 (Exhibit 59) on behalf of the crew, whose wages were in arrears. Twelve months later the arrest expired and was not renewed. The vessel remained in Vila in the possession of Glenelg Limited who had repossessed it.

No rent after the first month was ever paid. In November 1981 Mr Bayer, the Managing Director of PITCO whose subsidiary companies Oak, Wood and Maple are Directors and secretaries of Glenelg Limited, received a phone call from Mr Cassel in Australia who said he had a buyer for Glenelg. As a result Mr Cassel came back to Vila and he and Mr Lind gained access to the Glenelg to bring it once more into survey. They were supervised by Mr Turkington who was guarding the vessel on behalf of Glenelg Limited. On Friday 18 December 1981 Mr Cassel and Mr Lind forcibly took possession of the vessel and sailed it out of Vila.

Mr Cassel told the court that his claim to have a buyer was just to gain access to the vessel in order to remove it from Glenelg's possession. Mr McFarlane, for the Appellants, has filed no less than fifty grounds of appeal. Taken in groups they may be summarised as follows:-

1. That the lower court erred in finding that the first month of the lease had expired by the 3rd of January 1980.

2. That the lower court was wrong in finding that the vessel was in Germanischer Lloyd Special Survey before 17 December 1979.

3. That the lower court was wrong in finding that the 1st Appellant did not have an Equitable interest in the vessel.

4. That the lower court erred in dismissing the 1st Appellant's claim of right or honest belief that he had the necessary authority.

5. That the Learned Chief Justice failed to tell the Assessors what is meant by lawful authority and claim of right.

6. That the Learned Chief Justice failed to direct the Assessors on onus of proof.

7. That the Learned Chief Justice failed to put the defence properly before the Assessors.

8. That the Learned Chief Justice showed excessive bias against the accused persons in his summing up.

9. The lower court applied a civil standard of proof in a criminal case.

10. That the lower court erred in finding that the Bareboat Charter had been legally determined.

11. That there were a number of errors of fact, and

12. That the sentences were excessive.

We will take each group of grounds in the same order.

(1) and (2)

We think these grounds are both based upon the misapprehension that an important issue was the validity of the notice of termination of the Bareboat Charter on the 3rd of January 1980.

Mr McFarlane had submitted that, the notice of termination was invalid because the Germanischer Lloyds Special Survey was not operative until at the earliest 19 December 1979 and therefore the first month of the Charter was not over until 19 January 1980. He submits that since that notice was invalid and no other notice has been given, that on 18 December 1981 the Charter was still in existence or in the alternative that Mr Cassel had a genuine belief that it was.

We think that too much was made by the defence in the lower court of the events of January 1980, so much so that at times the fact that the offence was committed nearly two years later seems sometimes to have been lost sight of.

The evidence before the lower court was that the Germanischer Lloyds Special Survey on the face of it, was dated from September 1979. The evidence of Mr Cassel says that he did not receive it until about 19 December 1979. The collateral agreement to abate rent was not to abate it until Mr Cassel received the Special Survey Certificate but until the vessel was "in survey". It was, in our view, in survey when the Certificate was issued.

Whether or not we are correct in this view, we do not think it relevant. Our reason is that even if the notice of the 3rd of January 1980 was invalid that does not affect the validity of Glenelg Limited's repossession of the vessel in 1981.

The notice of termination of the 3rd of January 1980 was issued under clause 18 of the Bareboat Charter Agreement which reads:

"...the lessor may by notice in writing to the lessee forthwith terminate the hiring of the vessel and repossess the vessel forthwith (upon) (a) failure by lessee to pay on the due date any rent payment...."

There is however, another relevant clause in the Agreement. Clause 8(a) reads:

"...In default of payment (of rent) beyond the period of seven days the lessor is to have the right of withdrawing the vessel from the service of the lessee without noting any protest and without interference by any court or any other formality whatsoever..."

The effect of clause 8(a) was to give the lessee seven days leeway. The lessor could by notice in writing, terminate the lease in default of payment of rent on the due date, but he could also wait for seven days. If the rent was still not paid after seven days the lessor could then repossess the vessel without notice or any more ado.

In December 1981, the rent was overdue by nearly two months. It's repossession by Glenelg Limited was then valid under clause 8(a). If authority is needed, two English cases are in print: North Central Wagon Finance Co Limited v Graham (1950) 1 A.E.R. 780 where a hire purchase company's repossession of a motor car under a similar clause was upheld in the Court of Appeal, and Moorgate Mercantile Company Limited v Finch and Anor (1962) 2 A.E.R. 467 which adopted the same reasoning.

There is therefore no doubt in our minds that in December 1981, whatever Mr Cassel may have had under any other agreement, he had no right under the Bareboat Charter Agreement.

(3) Mr Cassel had no longer any interest under the Bareboat Charter Agreement; there were certain other financial agreements which may have given Mr Cassel a legal interest in the proceeds of sale of Glenelg - we express no opinion - but assuming that there were, we are unable to see how by any stretch of the imagination could such an interest give Mr Cassel a right to take possession of the vessel.

Mr McFarlane concedes that any equitable interest cannot constitute a claim of right, but he submits that such an interest would be a valid ground for Mr Cassel's belief in such a right. We do not think therefore that we are called upon to decide whether such equitable interest existed. If it is a question of Mr Cassel's belief, then it is sufficient for us to note that he might have thought that it did exist.

(4) This is a crucial point. When the offence was reduced from 'theft' to taking "without lawful authority", the defence changed from a claim of right to an honest belief in such lawful authority. We have not been addressed on the meaning of 'lawful authority'. Should we, for example limit it to the authority having a collateral with the owner, or should we equate it with a legal authority not connected with ownership? We are also left with the question of whether a belief in lawful authority will suffice as a default to this lesser charge. This question is not clarified - rather the opposite - by English dicta. The reason is, that many English enactments of a similar nature use the phrase 'lawful authority' or 'excuse'.

And in Cambridgeshire C.C v Rust (1972) 3 A.E.R. 232 at 237 (cited to us by Mr Cote the Public Prosecutor) Lord Widary C.J. cited with approval a dictum of Wilkes J in R v Harvey (1871) 19 W.R. 446 that:-

"Excuse is either an authority or a reasonable belief in the authority,"

from this we might infer that the omission in the present penal law of the words 'or excuse' excludes a defence of reasonable belief in authority. Furthermore Lord Widgery referring to section 127 of the English Highways Act concerning obstruction of the highway, limited 'lawful excuse' to questions of fact not of law. Now the question of equitable right or of the legal termination of the Charter Agreement, are questions of law. However in R v Turner (1971) 2 A.E.R. 441 the Court of Appeal held that in a theft case a belief in a legal right was a good defence.

More to the point in Roberts v The Local Authority of the Borough of Inverness (1889) 27 Sc L.R. 198, (or 17R.19) referred to by Lord Widgery (in Rust..) a person convicted of driving cattle into land for use, of which he needed a licence, was acquitted on appeal because he had been told by the relevant Inspector that the piece of land was not subject to licence.

This seems to us much or more a point of law than of fact.

We are not bound by these decisions, but we bear them in mind in considering Mr Cassel's defence of a belief in lawful authority. We have considered this defence at length. We have sympathy with the position Mr Cassel found himself in. He may have redress at civil law. He appears to have made a very bad deal, as his friend Mr West who opted out of the deal, had warned him. Nevertheless the mere belief that he had been cheated (to use the term colloquially) does not constitute an honest belief that he had a right to take possession of the vessel, the subject matter of the various deals.

We have considered Mr Cassel's evidence with care. It seems to us evasive and at times not credible. He told Mr Lind, he says, that he 'owned' the vessel. He must have known that to be untrue. Nor can we believe that he honestly believed the Charter Agreement to be still in operation. We view with the utmost scepticism his statement that a firm of reputable lawyers advised him that he had a right to repossess the vessel.

The whole circumstances suggest a man at the last extent of exasperation, regardless of legal or equitable rights. In short we find that the lower court was justified in its rejection of Mr Cassel's defence of belief in his authority to repossess the vessel Glenelg from the possession of the owners Glenelg Limited.

(5), (6) and (7)

The matters of the summing up. We have already said that we think the decision as to the defence of belief in lawful authority was correct. We think that there may have been a lack of direction as to the onus of proof but we are satisfied as we have already said that as at the date of the offence/prosecution evidence - coupled indeed with that of Mr Cassel himself - proved conclusively that Mr Cassel had no lawful authority for what he did, so we apply section 221(1)(b) of the Criminal Procedure Code and hold that it did not lead to a miscarriage of justice and we will therefore not allow this appeal on this ground. As to bias shown by the Learned Chief Justice in presenting to the Assessors various points of fact for their decision, we agree that he made clear his disbelief of the version of events described by Mr Cassel but he is permitted to do this. We note the dictum of the full Court of Victoria in R v Umanski (1961) VLR 242 at page 243.

"The right of the trial judge to comment and indeed comment strongly on the evidence... is well established by authority, provided that - and this is vital - he makes it quite clear to the jury that it is they who are the judges of the facts and that they are free to accept to disregard his comments as they chose. See R v Kerr (No 2) [1950] VicLawRp 70; (1951) VLR 239 at page 247-8".

With respect; we agree with this dictum. We think it may allow more latitude with Assessors than with a jury because in the procedure with Assessors the Judge has a further option whether to accept their decisions and it is he who writes the final decision.

In the present case, despite strong intimations of his own views of the evidence the Learned Chief Justice was careful to tell the assessors time and time again that it was for them to decide.

We would in any case, in view of the conclusiveness of the evidence against Mr Cassel, apply section 221(1)(b) of the Criminal Procedure Code on this point also.

(10)

We have already answered this question. We have found that the Bareboat Charter had been legally terminated by repossession, an unequivocal act - long before 18 December 1981.

(11)

As the few errors of fact did not in our view affect the lower court's decision on the established facts we uphold that decision.

So far we have concentrated on the case for and against Mr Cassel. We will now consider Mr Lind. He was not involved in any of the financial transactions. He came into the picture only at the very end, and this is important - Mr Cassel told the Court that he told Mr Lind that he was the owner of the vessel. He was convicted as an accomplice by virtue of section 30 of the Penal Code. We have considered whether he could have held the belief that Mr Cassel was in fact the vessel's owner. We cannot bring ourselves to place any weight on this possibility based on the mere word of Mr Cassel without Mr Lind himself, who did not give evidence himself averring it.

We uphold the convictions of both accused.

(12)

Sentences. We have already adverted to what appears to have been the very unenviable position of Mr Cassel in respect of the Glenelg.

We say 'appears to have been' advisedly.

We are not prejudging civil issues. But we think he should have the benefit of what, for want of better evidence, appears to have been a situation in which he was overreached. For this reason we think the sentences were excessively severe for first offences.

We reduce that of Mr Cassel's from three and a half years to two years with no option of a fine but we confirm the order for 50,000VT costs. In the case of Mr Lind we reduce the sentence to 12 months imprisonment, without option of a fine and we reduce the order for costs, in proportion.

Appeal against conviction dismissed. Appeal against sentence allowed in part.

Dated at Vila this 25th day of March 1983.

L. CAZENDRES
COURT OF APPEAL JUDGE

J. JONES
COURT OF APPEAL JUDGE