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Regina v Nimelie [2012] SBHC 68; HCSI-CRC 43 of 2009 (14 June 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 43 of 2009

REGINA

-V-

BARNABUS BOLAM NIMELIE AND JOHN BOLAM VAIKE

HEARING: 15 May 2012
JUDGEMENT: 14 JUNE 2012

R. Iomea for the Crown
P. Spence (Ms.) for John Bolam Vaike
S. Kalu for Barnabus Bolam Nimelie

Palmer CJ.

1. The defendants, Barnabus Bolam Nimelie "Nimelie" and John Bolam Vaike ("Vaike") have been each charged with one count of uttering a written demand with menaces, contrary to section 294(1) (a) of the Penal Code; and three counts each of uttering a letter accusing of a crime with intent to gain money, contrary to section 294(1) (b) of the Penal Code.
   
2. The particulars of the first count provide that the defendants, on or about 8 July 2001, knowingly uttered a letter, that demanded with menaces, from Samson Maloaki and Esau Bapai, money in the sum of $12,000.00 without reasonable and probable cause.
   
3. The substance of this charge is derived from the contents of a letter dated 8 July 2001 in which a demand for the payment of $12,000.00 was addressed to Samson Maloaki ("Maloaki") and Esau Bapai ("Bapai") and alleged to have been sent by the two defendants for compensation for various swearing alleged to have been made, assaults and damage to property. These are more particularly enumerated in paragraph 3. (a) – (l) of the letter. Two copies of the letter are marked as Exhibit 1 and Exhibit 2.
   
4. The particulars of the second to fourth counts relate to the contents of a letter dated 25 October 2001, which sought to gain money from various persons by accusing them of the crime of murder.
   

The elements of section 294(1)(a) of the Penal Code

5. There are basically four elements which Prosecution is required to prove under count 1. These are:
   
   1. utters, knowing the contents of any letter or writing;
      
   2. demanding of any person with menaces;
      
   3. without any reasonable or probable cause;
      
   4. any property or valuable thing.
      

The standard of proof is that of beyond reasonable doubt and lies with prosecution.

(i) Knowingly utters the contents of letter.

6. The defence argument it seems is that the defendant did not know of the contents of the letter of 8 July 2001 and therefore did not utter that letter.
   
7. The prosecution is that the defendants were the signatories to that letter and therefore knowingly uttered the contents of the letter.
   
8. Section 4 of the Penal Code defines the word "utter" as "includes using or dealing with and attempting to use or deal with and attempting to induce any person to use, deal with or act upon the thing in question;".
   
9. Blackstone's Law Dictionary^[1] defines the word "utter" as "To put or send (as a forged check) into circulation; to publish or put forth; to offer. To utter and publish an instrument, ... to declare or assert, directly or indirectly, by words or actions, that it is good;...."
   
10. In common parlance to utter is to express in words whether in speech or in writing.
    
11. A letter therefore duly signed and dispatched to the addressees is prima facie being uttered and falls squarely within the definition of the word to utter. Also when a person signs such letter, he is deemed to have knowledge of its contents unless it can be shown that either the letter had been forged, that he is illiterate, or that it did not reflect what he wanted to say.
    
12. Section 90 of the Evidence Act 2009 provides that:
    

"... a representation contained in a document is taken to have been made by a person if –

(a) the document was written, made or otherwise produced by the person; or

(b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document."

13. The issue in relation to this document (letter of 8 July 2001 and marked as Exhibit 1^[2]) is whether it had been proven that the defendants wrote that letter and had it sent to the addressees, Samson Maloaki "Samson" and Esau Bapai "Esau".
    
14. For the following reasons I find that prosecution have established beyond reasonable doubt that the document originated from the defendants.
    
    1. Samson had received previous letters signed by the defendants in his capacity as a Minister in Provincial Executive Government prior to receiving this letter and was familiar with their signatures.
       
    2. He had received other letters as well and referred to two letters dated 7 May 2001 and 23 October 2001 which bore the same signatures.
       
    3. He had seen previous letters signed by Nimelie when he was the Acting Provincial Police Commander for Temotu and recognised the same signature in that letter. He confirmed that the signatures to the letter were similar.
       
    4. The contents of other letters corroborated the contents in that letter of 8 July 2001, notably the earlier letter of 7 May 2001 (Exhibit 3), which Nimelie confirmed as having been written by him on behalf of Vaike and the Bolam family.
       

That letter of 7 May at the second paragraph states that a claim for compensation would be made for what it referred to as bad swearing done to them. The subsequent letter of 8 July not only makes specific reference to that earlier letter of 7 May 2001 but also then goes on to spell out their formal claim for compensation. The connection between those two letters is too obvious to be ignored.

5. The admission by Nimelie to the interviewing Police Officer, Ian Vaevaso that they both signed that letter, although Vaike was not so forthcoming and uncertain whether he had signed the letter or not. Both when asked about that letter denied signing that letter but I do not believe them on their denials.
   

15. The tone, contents and signatures point to only one clear conclusion that that letter correctly reflected the minds of the defendants in this long standing rift and friction between the two families.
    

(ii) Demanding with menaces.

16. The second element for determination is whether that letter constituted a demanding with menaces.
    
17. In R. v. Clear^[3] Sellers L.J. stated:
    

"Words or conduct which would not intimidate or influence anyone to respond to the demand would not be menaces ..., but threats and conduct of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede to unwillingly to the demand would be sufficient for a jury's consideration ...."

In R. v. Tomlinson^[4], Wills J. noted that the menaces should be given a liberal construction and reiterated that the threat must not be one that ought not influence no one.

In Thorne v. Motor Trade Association^[5] Lord Wright not only agreed that the word "menace" should be given a liberal construction and but that it should not be limited to threats of violence. He pointed out it should include threats of any action detrimental to or unpleasant to the person addressed and may include a warning that in certain events such action is intended.

18. On the face of the document, on one hand, it can be accepted without much question and I do make the finding, that the contents of the letter constituted a demand with menaces, being that lives may be harmed or taken and property damaged if the demand for payment of compensation in the sum of $12,000 is not met by a certain date, being the deadline.
    
19. On the other hand, if one looks at the date on the letter, the time frame or the date for the dead line given, by the time the letter was received, which was on or about 9 October 2001, the dead line of 31st July 2001, stated in the letter had already expired. It may be argued that the demand with menaces being already past, it was ineffective, cannot be enforced and could not be construed as having any influence or impact on the addressees.
    
20. The evidence led by prosecution however, shows otherwise. That when the letter was received it was viewed with great concern and gravity. Samson said he was frightened for his life and as a result faxed a copy to his brother, Bartholomew Basia ("Bartholomew") on the 3rd of December 2001. He made extra copies too of the letter.
    
21. Esau said that when the letter was read to him he had it shown to his people and they cried and were frightened.
    
22. Bartholomew's reaction was to have the letter passed on to the police for possible investigation in view of the demand that had been made as he knew the allegations against him were without foundation and that he was not prepared to pay the money.
    

(iii) without any reasonable or probable cause.

23. The law requires that not only should the demand be made with menaces but that it should be without any reasonable or probable cause.
    
24. It will be a defence therefore if the defendants can show that they had reasonable or proper grounds for making the demand.
    
25. I do not think it can really be argued against much that on the face of the letter, there were reasonable grounds for the demand for compensation for swearing. Prosecution witnesses conceded that the words alleged to have been used were extremely provocative and abusive and in normal circumstances if true then compensation should be paid and where it is demanded, reasonable and proper.
    
26. The issue for determination under this particular charge is whether the demand for the payment of $12,000.00 with threats to do harm to life or property made without any reasonable or probable cause?
    
27. Having raised the issue of compensation for the alleged swearing, assaults and damage to property by the defence as contained in the letter, it is for prosecution to negative the justification raised.
    
28. For the following reason, I find that prosecution have done that to the required standard.
    
29. First, they have shown by evidence that the figure of $12,000.00 for swearing and related matters to be excessive. It appears that there was a meeting called by the chiefs at a point in time in 2001 to resolve the swearing and other related matters. There is difference in evidence as to what transpired in that meeting. The prosecution witnesses say that the ultimate decision was for $600.00 to be paid, the defence witnesses say it was $800.00. Depending on which version it was they claim that they complied with their part of the decision of the chiefs.
    
30. It is possible they may be describing two different meetings altogether or there was no proper communication in the meeting so that different versions were believed to be the decision of the chiefs.
    
31. The overwhelming weight of the evidence is that the figure of $12,000.00 demanded in the letter for the offences in custom was unreasonable.
    
32. Secondly, by stating that the figure was unalterable, or not negotiable, an unreasonable demand. The evidence adduced again showed that ultimately the final decision is to be made by the chiefs' council or committee, where there is disagreement between the parties.
    
33. Thirdly, to issue a threat to cause harm or loss to life and property cannot be viewed as being done for proper cause or reasons.
    
34. I am satisfied that the offence of demanding with menaces without reasonable or probable cause to have been established by the prosecution.
    

Counts 2, 3 and 4.

35. The offences in counts 2, 3 and 4 relate to the letter of 25 October 2001 written and signed by the defendants as the spokespersons for the Bolam family.
    
36. They do not deny that they wrote that letter. Nimelie confirmed that he was the one who had written the letter marked as Exhibit 7. In evidence however, they sought to explain away the contents of the letter by denying that it reflected their demands. Vaike told the court repeatedly that the contents of the letter had been the idea of the Provincial Secretary, Edward Daiwo. He had suggested to them how the letter should be written and addressed to the Provincial Government for payment.
    
37. Nimelie on the other hand told the court that he had letter written by hand following what Vaike told him were the contents of the meeting that they had earlier that day of the 24th October. He sought to explain that the $100,000.00 claim to the Province would be broken up so that the total of $50,000.00 claimed from the Namonas and Kesi and Vaea would come from half of that $100,000.00 and the other half to be used by the Province assist with the reconciliation undertakings between the parties.
    
38. The Provincial Secretary acknowledged there was a meeting but denied that the contents came from him. He told the court that the contents of the letter were the demands of the defendants themselves and had nothing to do with the Provincial Government although they were interested to facilitate reconciliation between the parties.
    

Count 2:

39. I am not satisfied prosecution have established beyond reasonable doubt that the defendants had accused Maloaki, Basia and Tavake of murder or manslaughter with intent to gain money in the sum of $100,000.00 for the following reason.
    
40. The contents of the letter in paragraph 4 at page 1 actually refers to a compensation claim from Maloaki and his brother in the sum of $30,000.00 and two big bright red feather money but not $100,000.00. The reference to the $100,000.00 was in relation to a claim they had heard that those three would be able to pay that money if anyone was killed from the Bolam family. All three brothers had denied making such claims and so it was a baseless claim. It was referred to in the letter to support their claim of $30,000.00 but nothing in the amount of $100,000.00 was actually demanded from those three brothers.
    
41. I am not satisfied this has been established and I acquit them of this count.
    

Counts 3 and 4:

42. Both Kesi and Vaea gave evidence to the effect that they had nothing to do with the killing of Andrew Nieda.
    
43. The contents of the letter in sub-paragraph (2) of paragraph 4 of page 1 of that letter speaks for itself. It accused them of being involved in the planning and killing of Nieda.
    
44. I have had the opportunity to consider the argument of honest claim of right but cannot accept that submission in the context of compensation claims here which the defendants know is a matter which should rightly be put before the Chiefs council or committee for consideration and decision. The figure floated of $10,000.00 each would appear to be an excessive figure if the evidence of witnesses called by prosecution relating to compensation payments is taken into account.
    
45. In his evidence Vaea actually told the court that he hardly took any notice of this claim as it had no substance to it although Kesi expressed some element of fear and concern at it.
    
46. I am satisfied prosecution have proven these two counts beyond reasonable doubt and make a finding of guilty as well on each count.
    

Orders of the Court:

1. Enter conviction against the two defendants in respect of counts 1, 3 and 4.

The Court.

^[1] Sixth Edition
^[2] Note a better copy of the same document is marked Exhibit 2.
^[3] [1968] 1 All E. R. 74, C.A.
^[4] [1895] 1 Q.B. 706
^[5] [1937] A.C. 797, H.L.