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Regina v Perfili [1992] SBHC 12; HC-CRC 032 of 1992 (3 November 1992)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 32 of 1992

REGINA

-v-

PERFILI, MCDOUGALL and JOHN BARE MAETIA

High Court of Solomon Islands
(Muria ACJ.)

Hearing: 22, 23 October, 2 and 3 November 1992
Judgment: 3 November 1992

F. Mwanesalua, DPP, for the Crown
J. Wasiraro for the Third Accused

MURIA ACJ: At the close of the prosecution case, the defence submitted that the Accused had no case to answer. The basis of the defence's submission is the Order contained in LN 78/92 dated 15 June 1992 was a nullity because the Minister making the Order was acting ultra vires his powers.

Mr Wasiraro for the defence argued that the Minister has no power to make wild birds a prohibited export under section 37 of the Customs and Excise Act (Cap 58). This counsel argued, because wild birds are not "goods" as defined in the Act. So that by making the Order prohibiting the export of an item which was not "goods" within the meaning of the Act. Counsel sought to support his argument by comparing the definition of "goods" contained in the preceding legislation which was the Customs Management Regulations 1907 (Cap. 63). Under the 1907 legislation, the word "goods" was defined as -

"'goods' includes any animal, money, bills, notes, bonds or any movable property of any kind whatever."

Pursuant to the powers conferred by section 82 of the 1907 statute, the High Commissioner made an order prohibiting the export of certain enumerated goods such as:

"20. Birds, other than domestic fowls, alive or dead, or their skins or plumage."

The present Customs and Excise Act (Cap. 58) came into force on 1 April 1960 replacing the Customs Management Regulation, 1907 (Cap. 63). By section 2 of the present Act, "goods" is defined as:

"goods' includes all kinds of goods, wares, merchandise and livestock."

Applying the expressio unius exclusio alterius rule says counsel, "wild birds" are excluded from the class of "goods" as defined. Thus counsel says the Minister acted beyond his powers when he made the order prohibiting the export of wild birds.

It is interesting to note that the 1907 Customs Management Regulation No. 2 of 1907 (Cap. 63) was enacted -

"to provide for the collection and management of the Revenue of customs."

where the Customs and Excise Act, No. 2 of 1960 (Cap. 58) was enacted to -

"provide for the imposition, collection and management of customs and excise duties, the licensing and control of warehouses and of premises for the manufacture of certain goods, the regulation and control and prohibition of imports and exports and for matters incidental thereto and connected therewith."

It must be obvious that the two statutes were enacted embracing the different policy decisions of the respective government of the day. The fact that in the 1907 statute the word "goods" was defined to include -

"any animal, money, bills, notes, bonds or movable property of any kind whatever."

and in the present status the word "goods" is defined t include -

"all kinds of goods, wares, merchandise and livestock."

clearly expressed the intention of the legislature as to the meaning to be given to the word "goods" in the two statutes. The draftsmen in the two statutes chose to use certain words to define "goods", in the respective statutes. The draftsman in the 1907 Regulation chose to specify those matters to be covered under the definition of "goods". The draftsman of the 1960 Act chose to use words of general character when defining the word "goods". Such a practice is not unusual. but the fact that one Act specifies a particular matter and the other is silent on the point does not necessarily mean that the expressio unius rule should be applied.

The maxim "expressio unius exclusio alterius" is no more than an aid to construction and must be watched since its application to the two contrasting statutes here concerned may well lead to a misconception of the rule. The rule is, however, a valuable tool but one which must be watched. As Wills, J., stated in Colquhoun -v- Brooks [1887] UKLawRpKQB 150; (1887) 19 QBD 400, at 406:

"I may observe that the method of construction summarised in the maxim 'expressio unius exlusio alterius' is one that certainly to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the "expressio" compete very often arises from accidents, very often from the act that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind; and the application of this and every other technical rule of construction varies so much under differing circumstances, and is open to so many qualifications and exceptions, that is rarely that such rules help one to arrive at what is meant. Certainly in the present case the only use of the maxim in question is to summarise in four words the argument upon this point for the Crown"

On appeal to the Court of Appeal Lopes, LJ[1889] UKLawRpAC 43; , (1888) 21 QBD 52 at p. 65) said:

"The maxim 'expressio unius exlusio alterius' has been pressed upon us. I agree with what is said in the Court below by Wills, J., about this maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident and the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice."

As I have earlier stated that changing circumstances and policy decisions resulted in the change of the states and in particular the provision encompassing the definition of "goods". In Dean -v- Wiesengrund [1955] 2 All E.R. 432, at 443, Morris, L.J., after considering the warning expressed by Wills, J and Lopes, LJ in Colquhoun -v- Brooks went on to say:

"Doubtless there are instances where matters expressly mentioned may be regarded as comprehensive, complete and all-inclusive; but I fail to see that the maxim can be applied to the provisions in the 1917 and 1920 enactments. Decisions of policy might account for the provisions enacted. Furthermore, if the maxim is being considered, I should have thought that it ought to be considered separately in regard to the tenant's position."

In my judgement, the term "goods" must be confined to "goods" as defined in the present Act and must be construed using the words used by the legislature. I do not see any justification for the application of the "expression unius" principle in construing the definition of "goods" in the present Act. To employ the maxim to the definition of goods in the present Act in my view, would lead to uncertain and capricious operation of the law.

The definition of "goods" in the present Act covers "all kinds of goods, wares, merchandise and livestock." and in my judgement that covers all those items specified by the Minister in paragraph (c) of the Order dated 15 June 1992 of the prohibited exports. The Minister has the power to do so and he had not acted ultra vires his powers.

The Accused therefore has a case to answer.

(G.J.B. Muria)
CHIEF JUSTICE