The United States of America appeals from two orders of the United States District Courtfor the Southern District of New York whichdenied its applications for a restitution award in favor of the Republic of South Africa, pursuant to, first, the Mandatory Victims Restitution Act of 1996 (MVRA),and second, the Victim and Witness Protection Act of 1982(VWPA). The Appeals Court ruled that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, and (2) is a victim, as defined by the MVRA and VWPA, eligible to receive restitution. Accordingly, the Appeals Court said, "restitution is owed to South Africa."
The case involves the fact that from 1987 to 2001, Arnold Bengis, Jeffrey Noll and David Bengis (defendants) engaged in an elaborate scheme to illegally harvest large quantities of South Coast and West Coast rock lobsters in South African waters for export to the United States in violation of both South African and U.S. law. The district court heldthat South Africa had no property interest in either the lobsters that the defendants took from South African waters; that the governmentfailed to prove that the illegally harvested lobsters were the property of South Africa; and finally thateven if restitution was permissible as a matter of law, "the complication and prolonging of the sentencing process resulting from the fashioning of the order of restitution under this section would outweigh the need to provide restitution to the Republic of South Africa."
The Appeals Court reversed and remanded the district court orders and said, "?we hold that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, (2) is a victim for restitution purposes, as defined by the MVRA and VWPA, and (3) whatever the complexity in fashioning a restitution order in this case, it is insufficient to preclude entry of suchan order under the MVRA. Accordingly, the judgments of the district court are vacated and the case is remanded to the district court for further proceedings consistent with this opinion."
This is an appeal against a sentence. The appellant was charged with two counts:
1. Failing to declare the possession of 12 rhinoceros horns, contravening section 15(15)(b) read with section 1, 81, 87(1), and 95 of the Customs and Exice Act, No. 91 of 1964.
2. Being possession of the relevant rhinoceros horns without being in possession of a permit, contravening section 57 (1) read with section 1, 56, 57(1), 101(a) and 102 of the National Environmental Management - Bio-Diversity Act No. 10 of 2004 read with Government Gazette 31899 Volume 524.
On 6 July 2011 the appellant pleaded guilty to the charges proferred. The State called on three impressive witnesses during the court proceedings, who were experts on the seriousness of the problem of hunting of rhinoceros for their horns. The Judge believes that the Court may fairly take judicial notice of the fact that the whole issue of hunting of rhinoceros in South Africa has received much attention and the scale of the problem is most disturbing.
The Trial Court sentenced the current appellant to two years on Count 1, and 10 years on Count 2 of imprisonment. The Judge of the current appeal, reasoned that a court must always have regard to the possibility of rehabilitation and correction, as well as serve the function of specific deterrence. However, the Judge does not see the need to impose a sentence of this magnitude, even though society's sense of outrage regarding rhinoceros hunting of the kind in question is particularly acute.
The Judge further reasoned:
"In my view, one of the reasons why poaching such as this is viewed so seriously is that we get a glimpse, through the threat to the survival of rhinoceros, of our own precariousness on this earth through greed." Taking into account the fact that the Magistrate did commit misdirections, namely letting the appellant await trial for 13 months, the Judge called for his interference. The fact that the two offences are so closely linked to one another provides a compelling argument for ordering their concurrency.
The Judge proposed that the appeal is upheld to the limited extent that it is ordered that the sentence of imprisonment on Count 1 is to run concurrently with the sentence on Count 2. And so, the effective sentence is 10 years of imprisonment. (Provided by: UNODC SHERLOC)
The accused and three other men were inside the Ndumo Game Reserve on 19 November 2011 at 17:00. One man was carrying a firearm. Game rangers patrolling in the Reserve caught sight of the men in pursuit of a rhino. The rangers ordered the man to put down the firearm. Instead, he turned and pointed it at the rangers. Realising that danger was imminent, the rangers fired shots, fatally injuring the man. The other three men disappeared into the Reserve. Early the following morning, the accused was found, still inside the reserve and wearing the same clothes. He was arrested.
Having been correctly identified, the primary issue was whether or not he could be held liable for the death of the deceased man. To be held liable one would have to show that the accused intended that the deceased be killed. This form of intention will be present where, subjectively, the accused foresaw the possibility of his actions resulting in the death of the deceased (even if only remote) and that he reconciled himself to this possibility and proceeded anyway. (Provided by: UNODC SHERLOC)
This is an application for leave to appeal against the sentence.
The appellant was charged in the Regional Court of Kempton Park with 26 counts for contravening section 80 (1)(i) of Customs and Excise Act 91 of 1994, in that he unlawfully and intentionally made improper use of documents issued as percolumn 1 and 3 of schedule A, in respect of goods to which the Customs and Excise Act relates to the export of rhino horns.The appellant is a Thai citizen, and a director of a Thai company known as Xaysanang Trading Export-Import. The Company deals with rhino horns, lion bones, teeth and claws. He was involved in the shooting of rhinos after legal hunting permits were issued to him for trophies.
This was a misrepresentation to the South African Authorities by the appellant. After the permits were thoroughly checked and cleared by the Customs and Nature Conservation, the appellant changed the addresses as they appeared on the CITES (Conservation International Trade in Endangered species of Fauna and Flora) permits, with the result that the rhinos horns ended up in Laos and Thailand. The people reflected onthe permits as professional hunters were in fact prostitutes hired by the appellant to mislead the South African Authorities. It also emerged that the appellant was a member of asyndicate that operates from Thailand and specializes in dealingin rhino horns.
The Court had to determine whether the trial court exercised its discretion properly in imposing the sentence of 40 years imprisonment. Although the appellant had legal permits to shoot the rhinos, he intentionally lied to the authorities. The permits were issued to him fraudulently to legitimize his unlawful and criminal activities. The offences were premeditated. The appellant knew that the killing of rhinos fortrading is a serious crime.
The sentence must not only serve as warning to the appellant but must also serve as deterrent to all those who intent to embark on illegal activities of dealing in rhino horns. Poachers must know that in the event they are caught, they would be prosecuted, and a proper and fitting sentence would beimposed on them. Having regard to the serious nature of the offences, the personal interest of the appellant and the interest of justice, a just and appropriate sentence, in the circumstances, would be 30 years imprisonment.
The sentence imposed by the trial court is therefore set aside and substituted with a sentence of 30 years imprisonment. (Provided by: UNODC SHERLOC)
This is a judgement on appeal at the Supreme Court.
The appellant was charged in the Regional Court of Kempton Park with 26 counts for contravening section 80(1)(i) of Customs and Excise Act 91 of 1994, in that he unlawfully and intentionally made improper use of documents issued as per column 1 and 3 of schedule A, in respect of goods to which the Customs and Excise Act relates to the export of rhino horns. The appellant is a Thai citizen, and a director of a Thai company known as Xaysanang Trading Export-Import. The Company deals with rhino horns, lion bones, teeth and claws. He was involved in the shooting of rhinos after legal hunting permits were issued to him for trophies.
This was a misrepresentation to the South African Authorities by the appellant. After the permits were thoroughly checked and cleared by the Customs and Nature Conservation, the appellant changed the addresses as they appeared on the CITES (Convention against International Trade in Endangered species of Fauna and Flora) permits, with the result that the rhinoshorns ended up in Laos and Thailand. The people reflected onthe permits as professional hunters were in fact prostitutes hired by the appellant to mislead the South African Authorities. It also emerged that the appellant was a member of asyndicate that operates from Thailand and specializes in dealingin rhino horns.
The Court had to determine whether the trial court exercised its discretion properly in imposing the sentence of 40 yearsimprisonment. Although the appellant had legal permits toshoot the rhinos, he intentionally lied to the authorities. The permits were issued to him fraudulently to legitimize his unlawful and criminal activities. The offences were premeditated. The appellant knew that the killing of rhinos fortrading is a serious crime. (Provided by: UNODC SHERLOC)
Ms Khohliso, a traditional healer from Tsolo in the former Transkei was convicted by the Tsolo Magistrates’ Court for the possession of a pair of vulture feet in contravention of section 13(c) read with section 84(13) of the Transkei’s Decree 9 of 1992. Section 13(c) of the Decree provided that no person shall (without the requisite permission) sell, buy, donate, receive as a donation or be in possession of any carcass of a protected wild animal (i.e. a vulture).
Section 84(13) creates strict liability for non-compliance with the above, stipulating that lack of knowledge of any fact, or to say that one did not act wilfully could not be used as a defence. It follows that once it is shown that a person is in possession of such carcass, that person is automatically criminally liable, regardless of whether or not he or she knew or ought reasonably to have known that this possession was unlawful.
As part of her traditional training, Ms Khohliso was never informed that possession of certain species, such as vulture’s feet, was prohibited by law. Counsel for Ms Khohliso argued, and the Court agreed, that Section 13(c) read with section 84(13) of the Decree eroded Ms Khohliso’s Constitutional right to a fair trial in that it negated the requirement of guilty knowledge. The essence of the argument being that to deprive a person of a defence, and accordingly of her freedom, in circumstances where that person did not know, and could not reasonably have been expected to know, that her actions were prohibited, offends against the right to a fair trial and more specifically the right to be presumed innocent.
Judgement: The High Court overturned the conviction. (Provided by: UNODC SHERLOC)
The applicant and her translator, Quinling Zhang, were arrested on 4 July 2005 for possessing 72 pieces of raw ivory without the requisite permits, dealing in raw ivory and attempted export of the same without the necessary export documents. She had purchased the ivory from a dealer who was licensed by the Respondent 2, the responsible authority for managing inter alia wild life products, to manufacture and not to sell raw ivory.
The police seized the ivory and surrendered it to the responsible authority for storage purposes, pending the prosecution of the applicant and her translator. The prosecutor denied to prosecute them, taking the view that the two had acted, to their detriment, on the advice of the licenses dealer that the ivory was processed, and so lacked the essential mens rea to commit the offence. A recommendation was made to release the ivory to its "legitimate owners", and since the two could not lawfully possess the ivory in question, must negotiate with the responsible authority to regularize their future possession, and if this failed, it would be forfeited to the State.
The responsible authority was concerned by the effect the suggested compromise would have on Zimbabwe's compliance with the requirement of the Convention on International Trade and Endangered Species (CITES).
Although the applicant first argued her claim is based on ownership of the ivory, this was later retracted by her representative Ms. Munangati, as she would need to establish that the law allows her to own the ivory in question. So, Ms. Munangati suggested that the application was based on Section 59(1)(a) of the Criminal Procedure and Evidence Act, which empowers an investigating officer to dispose of exhibits in cases where no criminal proceedings are instituted, and empowers the return of the ivory exhibits to the applicant if she could legally possess them.
Section 59(1)(a) of the Criminal Procedure and Evidence Act provides no cause of action for the applicant. It seems that she could only base her claim on ownership or possession. She has strongly denied that she is approaching this Court on the basis of ownership. She also lost possession and does not have it. She cannot rely on Section 59(1)(a) of the Criminal Procedure and Evidence Act, and so, clearly has no cause of action by which to approach this Court. The application is therefore dismissed on the basis that she lacks a cause of action. (Provided by: UNODC SHERLOC)
Mr. Tridon operates a centre for the artificial incubation of parrot eggs in Champagnier. He is accused in the main proceedings of having transferred for consideration captive born and bred specimens of species of macaw whose use for commercial purposes is prohibited throughout national territory by the Guyane decree. Between November 1995 and November 1997 Mr. Tridon allegedly sold by way of trade to partners or customers captive born and bred macaw occuring in the overseas département of Guyane (France).
As a defence to the prosecution brought against him, Mr. Tridon submits that the provisions of the Code rural, in particular Article L.211-1 thereof, and the Guyane decree are incompatible both with the Convention on International Trade in Endangered Speciesof Wild Fauna and Flora (CITES), and Articles 28 and 30 of the Treaty on European Union (TEU), as well as EEC Regulation No 3626/82 and EC Regulation No 338/97, which were adopted successively for the application of CITES in the Community.
The Tribunal de grande instance de Grenoble referred the following questions to the European Court of Justice (ECJ, "The Court"):
1. Before 1 June 1997, must provisions of CITES, in particular Articles VII and XIV, EEC Regulation No 3626/82, in particular Articles 6 and 15, and Articles 28 and 30 of the TEU be interpreted as allowing a Member State take or maintain domestic measures prohibiting at any time and in the whole territory of that State any commercial use of captive born and bred specimens of wild species occurring in the wild in all or part of the territory of that State?
2. After 1 June 1997, must provisions of CITES, in partuclar Articles VII and XIV, EC Regulation No 338/97, and Articles 28 and 30 of the TFEU be interpreted as allowing a Member States to take or maintain domestic measures prohibiting at any time and in the whole territory of that State any commercial use of captive born and bred specimens of wild species occurring in the wild in all or part of the territory of that State?
The Court ruled:
As regards species covered by Annex A to EC Regulation No 338/97 on their protection and regulating trade therein, that regulation must be interpreted as not precluding legislation of a Member State which lays down a general prohibition in its territory. Also, as regards species covered by Annex B to this regulation, that regulation does not prohibit the commercial use of specimens of those species, provided that the conditions laid down in Article 8(5) of that regulation are met.
As regards species covered by Appendix II to CITES, EEC Regulation No 3626/82 does not prohibit the commercial use of specimens of those species. Also, as regards species covered by Appendix I, this regulation must be interpreted as not precluding legislation of a Member State which lays down a general prohibition on its territory.
The prosecutor indicted Mr. Nilsson for:
- Having, in August 1998, unlawfully and either intentionally or recklessly purchased the following mounted specimens: two sparrow hawks, two hobbies, two hen harriers, one Ural owl, four tawny owls, one goshawk, two kestrels, one snowy owl, one hawk owl, one short-eared owl, one barn-owl, one marsh harrier, four buzzards, one long-eared owl, one crane, one golden eagle and one sea-eagle despite the fact that those species are included in Annex A to Council Regulation (EC) No 338/97 based on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
- Having, in July 1998, unlawfully and either intentionally or recklessly purchased a mounted brown bear despite the fact that this species is included in Annex A to Council Regulation (EC) No 338/97 based on CITES.
The Hässleholms District Court referred the following questions to the Court for a preliminary ruling:
1. Do stuffed animals listed in Annex A to Regulation No 338/97 fall within the definition of "worked animals"?
2. What is covered by the term "acquire" in Article 8(3) of Regulation No 338/97.
3. Must the person who acquired the specimen more than 50 years previously be the present owner?
4. Do the provisions on exemption in Article 32 of Regulation No. 1808/2001 mean that no assessment by the management authority in accordance with Article 2(w) of Regulation No 338/97 is required?
The Court gave the following answers as part of its preliminary ruling:
1. Articles 2(w) and 8(3)(b) of RegulationNo338/97 on the protection of species of wild fauna and flora by regulating trade therein, as amended by Regulation No 2307/97, are to be interpreted as meaning that the animals referred to in Annex A to that regulation but which have been stuffed fall within the definition of "worked specimens" for the purposes of those provisions.
2. Regulation No 338/97, as amended by Regulation No 2307/97, is to apply in compliance with the objectives, principles and provisions of CITES. Although the Community is not a party to that convention, the Court cannot disregard those elements, in so far as they have to be taken into account in order to interpret the provisions of that regulation.
3. Article 8(3)(b) of Regulation No 338/97, as amended by Regulation No 2307/97, must be interpreted as meaning that receiving specimens as a gift or inheriting them, or killing animals and then taking them into one's possession, makes them "acquired" within the meaning of that provision. The concept of "acquired" for the purposes of Article 8(3)(b) concerns any taking into possession with a view to personal possession. Moreover, it is not necessary that the person who acquired the specimen more than 50 years previously be the present owner.
4. Article 8(3)(b) of Regulation No 338/97must be interpreted as meaning that the management authority of the Member State concerned must have been able to ascertain that the specimen in question was acquired in accordance with the conditions laid down in Article 2(w) of Regulation No 338/97, as amended by Regulation No 2307/97. (Provided by: UNODC SHERLOC)