IN THE CENTRAL MAGISTRATES' COURT OF SOLOMON ISLANDS

Criminal Case No. 238/86

REGINA

-v-

ALBERT MANUI

JUDGMENT

The Defendant is charged that on the 13th February 1986 contrary to section 288 of the Penal Code. He by force, demanded from Martin Paikai the sum of $50 with intent to steal the same.

The facts that are not in dispute are that Martin and his wife attended The Tobacco Factory Single men's quarters to visit his ill brother. His brother shares a room with another reef islander. Martin's wife is Fijian. Martin went first and having asked is it was alright he went and collected his wife. They spoke for a few minutes when some called at the door and said that women were not allowed. She left and went to wait in the car. When Martin joined her he was approached by the defendant who asked him for money as women were not allowed in the house. The Defendant is a Malaitan and there was a large group behind him. Martin asked how much. He said he had money, then said he had $50 on him where upon the defendant grabbed the money and went off. Martin did say in Cross Examination that the demand was for compensation. When asked how much and he took out his money the defendant just took the whole sum. The group wanted to fight with Martin and he was afraid. Martin was adamant that the money was just grabbed and he said there was $50 there, Martin wanted to know how much should he pay. Martin went on to explain in his custom such a breach would warrant a small payment of $2 and if someone was from a different island, and did not know the custom. Compensation would not be asked for. Henry Sau confirmed the facts. He shares a room with a reef islander, and a Guadalcanal man. The man at the door said that that the others were cross and Martin would have to pay a fine. He described the scene of any crowding around Martin, running about, shouting. He knew the defendant as a married man who did not use in the single quarters. He saw the money handed over.

Jezreel Lamanga gave evidence of custom in North Malaita. In custom from long ago single boys may have an area of their own and if a woman entered that area for no good reason that was a breach of custom. He said but times have changed. If there was such a breach then the parties involved would discuss the matter and compensation would be paid depending upon why she had entered the area. The situation he was describing was custom in its strict application. That cannot be applied to town areas, and must or can only be enforced in the village or in private houses. If custom was applied strictly progress would cease, no one could travel by ship. The NPF building could not used, no building could be above one storey as women could be above men. When explained to him that this was not a private dwelling and why the women had entered he was of opinion that if someone didn’t know the custom compensation should not be asked for, only if the custom was known of and had then been broken. Anyone could ask, and it was a minor breach, and compensation if paid would be of $2. He said that $50 was high. Compensation was paid by the party in breach not to all those effected.

The defendant be gave sworn evidence that he was married and lived in married quarters at the Factory. He had taken his sister and her friend into the single men's area and had paid $5 for the two girls $2.50 for each. He acknowledged that Henry Sau did not know of the custom. He and his section arrived back from soccer practise and saw the women come out and asked for compensation. Martin handed over $50. He shared out the money between all the Malaitans. In Cross Examination he stated that his custom, Malaitan custom was to be followed by all, even if they were from a different island. Sau should have asked. The defendant didn't ask what their custom was. He said that Martin was afraid. When asked by the Courts he confirmed at the time of the visit no one was at the home. That there were 30-50 Malaitans around Martin. When asked why he himself had paid compensation he said because he was afraid, and Martin too had paid, because he was afraid. The onus of proving the elements of the offence as charged lies upon the prosecution and I must be satisfied beyond reasonable doubt. The elements of the offence are that there must be a demand, if words and gestures at the time were plainly indicative of what the defendant required, and tantamount to a demand, it is sufficient. The offence may be committed although the language used may be only a request and not an explicit demand. On the facts there was clearly a demand and by force. The defendant had at the least 20 and most likely more young men around him, running about and crowding around the victim. The evidence of Martin was that the demand was made and the money grabbed by the defendant. I accept Martin's account. The whole of the prosecution case rests upon whether the defendant had the necessary intent which must be that the defendant intended to steal that money. That is, he, without the content of the owner, fraudulently and without claim of right made in good faith…

What was the defendant's intention at the time! That is the question for the court to determine upon the facts of the case. A person has a claim of right where he honestly asserts what he believes to be a lawful claim, even though it may be unfounded in law or fact. The defence case relies upon this. The defendant thought he had a claim of right, in custom he could make this claim and therefore he could not have the intent. Many cases just like this come before the court but are withdrawn for this very reason. Did this defendant at the time he made the demand think he had a claim of right made in good faith. The Court has heard evidence that custom has its place and that it is very important. Custom also has its place in law and its position is protected by the Constitution and the Legislature has the power to incorporate it into the Law of the Solomons. But if the custom is to be followed it must be clear, unambiguous, and be of general-application to all, or to certain area. The custom evidence before this court is that the particular custom in this case simple cannot be applied in an advanced, and commercial society. Did this defendant honestly believe in his custom and apply it in all situations. He himself took his sister and his friend into the area. He knew why this woman had gone to see her sick brother-in-law even in his custom such an act would not be taboo. If he really did apply his custom strictly would have acted as he did. Custom is followed, inter alia, as it is respected and if there is a breach, all the parties sit down to discuss and reach settlement. It is not a demise to extort large amounts of money by a show of force as sadly it is becoming in and around Honiara when used in this way by young men without reference to the old men and family heads. It is clear that the breach i.e. a woman going into the premises, if taken as such, is a very minor breach and in custom would not warrant a large claim. On the facts, when asked how much compensation should be paid the defendant didn't reply he merely took the $50. He knew it was only worth a few dollars. If Martin had said "yes, I have broken your custom. Here take this $50" and he had acted voluntarily that is one thing but upon asking how much to take or indeed to accept a large amount and remain silent is not the act of man acting in good faith but is the action of a man acting dishonestly or fraudulently. Did the defendant have an honest belief that this was the way to obtain compensation. In custom the matter is discussed between the parties and a solution is found by consent.

Having considered all the facts and the evidence before this court I am of the opinion that the defendant did not have a claim of right made in good faith nor did he believe he had. He had previously had to pay compensation himself and upon this opportunity arising he acted likewise he had to pay, others would have to, but he knew that the breach was minor, and worth a few dollars yet he took $50. The custom evidence was that the party in breach pays for the breach not a sum to each party. On his own admission the claim was only worth $2.50 the amount he himself paid yet he took $50. He has given that this was distributed amongst his wantoks that he received nothing himself. I do not consider that relevant to the offence itself he has disposed of the money as if were the owner of it. Having satisfied myself beyond reasonable doubt as to the various elements I convict accordingly.

26.5.86

North Malaita. Married with 4 children. 1st at school. Standard 5 Education. Solomon Islands Tobacco Factory Limited. $100.00 per month. No previous convictions.

Mr Brown

Co-op. Should not be penalised for Not Guilty plea, advised by myself, mature man. No previous convictions. 7-8 year employment. Married 4 children. No personal gain to him he was approached to be spokesmen. Not warrant custodial sentence.

Sentence

No previous conviction. Married in employment. The force used was indirectly, not directly i.e. by weapon it if was it would be a custodial sentence. My sentence must carry a deterrent element, if custom is to be relied upon it must be done in the correct way and not be custom by knife-point.

Fine $200 ($50 to Martin Paika) as compensation. Payable 28 days in default 3 months imprisonment.

JKR Stanford-Smith
Principal Magistrate Central