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Regina v Jackson [2008] SBHC 72; HCSI-CRC 256 of 2007 (11 December 2008)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 256 of 2007

IN THE MATTER of an appeal from the Magistrates Court

BETWEEN:

REGINA
Respondent/Appellant

AND:

COLIN JACKSON
Appellant/Respondent

Date of Hearing: 12 September 2008
Date of Judgment: 11 December 2008

Ms. Bird for Colin Jackson
Ms. Christensen for Crown

DECISION ON APPEAL

Cameron PJ

1. This is an appeal against a conviction on 4 July 2007 for unlawful dealing in gold, following a trial in the Central Magistrates Court. The Crown cross appeals against an oral order made by the learned Magistrate following conviction that the gold the subject of the unlawful dealing, which is in the possession of the police, be returned to the appellant. The gold, which was seized by police at the time of the appellant's arrest, has remained in the custody of the police pending this appeal. Its value is said to amount to approximately AUD$30 000.

2. The appellant has been charged with offences under the Mines and Minerals Act 1996, which requires that those who deal in gold in Solomon Islands be licensed to do so by the government. Effectively it prohibits dealing by any person who is not the holder of a gold dealer's licence issued by the relevant Minister, but does not prevent an unlicensed person buying gold from a licensed dealer. To obtain a licence it is necessary, among other things, for a person to be a citizen of Solomon Islands and a fit and proper person. The exceptions to this do not apply in this case. It is also necessary to have an approved registered place of business (s. 61 (1)), and all purchases and sales of gold have to be effected at that place of business.

3. The appellant, who did not have a hold dealer's licence, was convicted at trial of two offences under the Mines and Minerals Act. The first conviction was for purchasing the gold from various alluvial miner permit holders at a place other than the registered place of business of a gold dealer's licence holder.

4. This first conviction simply cannot stand. The Act requires a licensed gold dealer to conduct purchasers and sales from his or her registered and approved place of business as gold dealer. Clearly if a person does not have a gold dealer's licence, then he has no registered and approved place of business for gold dealing under the Act. Section 58 of the Act, in providing that purchases and sales are to be made "at the registered place of business of the gold dealer", precludes dealing other than at the registered place of business of the gold dealer who is doing the purchasing or selling. As the appellant had no licence, the requirement to deal from an approved place of business did not arise and the conviction on this (Count 1) is quashed. I am advised that the penalty imposed of a fine in the sum of $1, 000 has been paid by the appellant. I order that the appellant be refunded that amount.

5. The second conviction was for purchasing gold without being the holder of a gold dealer's licence. The learned Magistrate was satisfied on the evidence that the appellant in fact purchased gold from various alluvial mine permit holders (that is, from a person other than a licensed hold dealer) in contravention of the Act. During the hearing of the appeal, Ms Bird advised the Court that she did not challenge this conviction, and therefore I need go no further in that respect.

6. The final issue is the Crown's cross-appeal in respect of the ruling by the learned Magistrate, following the convictions, that the gold be returned to the appellant.

7. in the absence of clear sentencing notes on the point, I am satisfied from what Ms Bird has informed the Court (Ms Bird having been counsel for the appellant at trial) that all counsel advised the learned Magistrate that there was no jurisdiction to order forfeiture, and that on that basis an order for its return was made.

8. There is no provision under the Mines and Minerals Act permitting forfeiture of gold the subject of unlawful dealing.

9. However, section 104 of the Criminal Procedure Code provides:

"104.-(1) When any such thing is seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.

(2) If any appeal is made, or if any person is committed for trial the court may order it to be further detained for the purpose of the appeal or the trial.

(3) If no appeal is made, or if no person is committed for trial, the court shall direct such thing to be restored to the person from whom it was taken, unless the court sees fit or is authorised or required by law to dispose of it otherwise."

10. It can be seen under section 104 (3) that the Court is required to direct property be returned to the person from whom it was taken "unless the Court sees fit or is authorised or required by law to dispose of it otherwise".

11. By the use of the word "or" in that part of section 104 (3), I consider that there is recognition that the Court can make an order disposing of property to another person in three situation:

(a). if the Court sees fit to dispose of it otherwise;

(b). if the Court is authorised to dispose of it otherwise;

(c). if the Court is required by law to dispose of it otherwise.

The obvious situations where the latter two powers would be relevant are respectively where a statute gave a discretionary power to a Court to order forfeiture or required that mandatory forfeiture occur.

12. In my view, there remains a separate discretion conferred by the Code to dispose of property otherwise than to the person from whom it was taken where "the Court sees fit". An obvious example of an appropriate exercise of this discretion would be if the actual owner of the property differed from the person from whom it was seized. In my view, though, it also enables a Court to make a forfeiture order if there were compelling grounds under public policy not to return it to the person from whom it was taken.

13. In the present case the very act of purchasing the gold by the appellant was the prohibited act for which he was convicted. To assert his claim of ownership and entitlement to possession of the gold the appellant has to rely on the actual illegality involved – that is, its acquisition by him as an unlicensed person, an act absolutely prohibited by the legislation. The prohibition can be seen from a combined reading of section 58 and 63 of the Mines and Minerals Act, which provides:

"58. The holder of a gold dealer's licence, together with his servants and agents, shall have the right to –

(a). purchase gold from either the holder of an alluvial miner's permit, or from another licenced [sic] gold dealer; or

(b). sell gold to any person within Solomon Islands; or

(c). export gold,

provided that both purchases and sales are effected at the registered place of business of the gold dealer...

63. Any person who purchases, sells, exports or otherwise deals in gold contrary to the provisions of this Part shall be guilty of an offence and liable, on conviction to a fine not exceeding twenty thousand dollars or to imprisonment for a term not exceeding five years or to both such fine and imprisonment"

14. I have considered the cases the Crown relied on, and in particular Gordon v Chief Commissioner of Metropolitan Police [1990] 2 KB 1080, and R v Collis [1990] NZCA 30; [1990] 2 NZLR 287, Court of Appeal. I refer in particular to the statement of Casey J in R v Collis when considering the circumstances which would justify a forfeiture order. The learned Judge stated, p. 291:

"However, it has also been accepted that criminal or illegal conduct will only operate as a bar [to the return of the property to the person entitled to possession] if it has to be relied on to establish the claim to the benefit sought".

In this case, as I have said, the illegal conduct (the prohibited purchase) has to be relied on by the appellant to assert proprietary rights to the gold.

15. In my view it would be contrary to the public policy to return the gold to the appellant, as to do so would enable him to benefit directly from his illegal act.

16. Returning to the situation the learned Magistrate found himself in when he ordered the gold's return to the appellant, in my view the apparent concession by counsel for the Crown that there was no right to order forfeiture was incorrect, for the reason given.

17. I accept that under section 104 (3) of the Criminal Procedure Code, it is envisaged that the power of the Magistrates Court to dispose of property is to be excercised after it is known that there is to be no appeal from substantive offence or where there is no committal for trial. This is clear from the opening words of the subsection, "if no appeal is made, or if no person is committed for trial". That stage, namely whether or not there was to be an appeal from the appellant's convictions, had clearly not been reached at the time the learned Magistrate ordered the gold to be returned to the appellant, as convictions had only just been entered.

18. Nevertheless, the power was vested in the Magistrate's Court, notwithstanding the question of the appropriate time for its exercise, and it was erroneous for the learned Magistrate to assume that it did not exist at all. As his order was based on the wrong premise, the discretion conferred on him was not properly exercised.

19. I mention, too, that there is a type of forfeiture contained in section 157 of the Criminal Procedure Code, but that is limited to applying property towards the payment of a fine, costs or compensation ordered, and is not applicable here.

20. While the facts of the offending are fully set out in their learned Magistrate's decision, I note that they establish a very deliberate course of conduct by the appellant to purchase significant quantities of gold over a significant period of time under the guise of being only the financier of a licensed gold dealer, which alleged relationship was completely rejected by the Court. I am satisfied from the authorities I have referred to that the power of forfeiture on the grounds of public policy that a person should not be allowed to benefit from his criminal acts (subject to the appropriate limitations discussed in those cases) is conferred on the High Court under the common law. Therefore, if necessary I also rely in this decision on the common law power of forfeiture vested in the High Court.

21. For the reasons given, I quash the order of the learned Magistrate that the gold be returned to the appellant. Under section 104 (3) of the Code, I order its forfeiture to the Crown, a penalty that I do not consider disproportionate to the offending.

22. The appeal by the appellant is therefore allowed in part, and the Crown's cross-appeal in relation to the forfeiture is allowed.

23. I direct that either party is entitled to apply for any ancillary orders which may be necessary to give effect to these orders. I direct that any such application be made not later than 16 March 2009.

BY THE COURT

HON. JUSTICE IDR CAMERON
PUISNE JUDGE