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R v Obea [2021] SBCA 6; SICOA-CRAC 44 of 2019 (1 February 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. Michael Obea, hereinafter called the appellant, was tried and convicted before the High Court in 2019 for the offence of murder. He now appeals that conviction. There are three grounds of appeal, which are that the learned trial judge failed to consider and determine a question of admissibility of evidence under the provisions of the Evidence Act [Cap 11 of 2009], that the same trial judge failed to give reasons supporting the conviction and that the conviction was unsafe or unsatisfactory.
2. The issue for the trial judge was whether the appellant caused the death of the deceased and, if he did, whether he possessed the necessary intent. The death occurred on 11^th October 2015 following whatever took place the previous day, Saturday 10 October 2015.
3. The trial took place between 12^th – 26^th August 2019 both in Auki and Honiara with judgment being delivered on 18^th October 2019. A number of civilian witnesses gave evidence together with evidence from police and medical personnel.
4. There is no direct evidence of the assault which led to the death of the deceased, Seralyn Suimea, a girl of ten years of age. Having heard her cry, Silas Suiomea ran to where the girl was lying at the seashore. He asked her what had happened, and she was then able to respond. Two other civilians approached and together, all three transported the girl to Kilufi Hospital where she later died the next day. All three asked the girl what had happened to her and all three were told by the girl what took place from her point of view and who the assailant was.
5. The issue of admissibility of this, prima facie, hearsay evidence was raised during the trial. No ruling on admissibility was made during the trial, it is unclear why, but counsel agreed that submissions on admissibility would be made after the reception of all of the evidence at the conclusion of the trial. That did happen, submissions were made and received, but still no decision on admissibility has been made.
6. Counsel for the respondent concedes that this goes to the integrity of the verdict and that in the circumstances the conviction cannot stand. In submissions an order quashing the conviction and ordering a retrial is sought. Counsel for the appellant seeks an order quashing the conviction and for this Court to order an acquittal.
7. Give the concession made by the Crown, it is safe to assume that the Crown agree that, in the absence of the second hand evidence of the now deceased victim through the three civilians, there is no case for the appellant to answer. If that evidence were to be ruled inadmissible, a conviction would not be possible. If the evidence is admitted and can be relied upon, a conviction for murder is available to a court.
8. Evidence in criminal trials is now principally governed by the provisions of the Evidence Act [Cap 11 of 2009], although the Act is not a code and allows for the common law rules to remain in force should there be no provision within it dealing with a particular rule of evidence.
9. Hearsay evidence and the exceptions to it can be found beginning at section 117. Competence to give evidence appears at section 24. This was a ten-year old girl and, in the absence of good reason, she is a competent witness. Were she to attempt to give evidence herself a question may arise as to whether she understood the obligation to tell the truth and what that means but she is otherwise competent according to the provisions of the section.
10. More significant is the reception within the trial of hearsay evidence. Hearsay evidence may be admitted into evidence in a criminal trial, in accordance with the provisions of sections 117 and 118 which provides:-
    • Hearsay
    • 117. A hearsay statement is not admissible except as provided by this Act or other law.
    • General admissibility of hearsay
    • 118. (1) A hearsay statement is admissible in any proceeding if –
    • (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
    • (b) either –
      • (i) the maker of the statement is unavailable as a witness; or
      • (ii) in any case where the court considers that undue expense and delay would be caused if the maker of the statement were required to be a witness.
    • (2) In a criminal proceeding, no hearsay statement may be offered in evidence unless –
      • (a) the party proposing to offer the statement has given reasonable notice of the intention to rely on the statement; or
      • (b) a other party has waived the requirement for notice; or
      • (c) the court dispenses with the requirement for notice in the interest of justice.
    • and
    • (4) In this section, 'circumstances', in relation to the statement by a person who is not a witness, includes –
    • (a) the nature of the statement; and
    • (b) the contents of the statement; and
    • (c) the circumstances that relate to the making of the statement; and
    • (d) the circumstances that relate to the truthfulness of the person; and
    • (e) any circumstances that relate to the accuracy of the observation of the person.
    • (5) For the purposes of this section, a person is unavailable as a witness in a proceeding if the person –
    • (a) is dead; or.....
11. The witness is clearly unavailable through her death, and the question therefore is, assuming the mechanics described in 118(2) have been complied with, and we are given no reason to doubt this on this appeal, the circumstances relating to the statement provide reasonable assurance that the statement is reliable. (section 118 (1) (a) which would require the court to consider the circumstances as set out in section 118(4).
12. None of this examination of admissibility took place within this trial. It seems clear at this stage that the trial miscarried and must be set aside. The remaining question is whether it is possible to make a determination on admissibility on the hearing of this appeal or, in the alternative, what might be an appropriate order.
13. The evidence itself has not been put before this Court as appeal material within the appeal book. Its effect is set out in submissions but the evidence itself not. Whether this is because of some practical difficulty we have not been told, but we note that the trial took place outside of Honiara where transcription and recording facilities are scarce.
14. Whatever the reason, in the absence of the evidence as part of the appeal record, we cannot begin to determine the admissibility question. If it is to be determined it must be determined by a further trial court. There is quite clearly no point in sending the matter back to the original trial judge to make a determination.
15. This Court may order a retrial. It is provided for, unlike many other jurisdictions, in the Court of Appeal Act [Cap 6]. It provides, inter alia:-
    • Determination of appeal in ordinary cases
    • 23. - (1) The Court of Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that on any ground there was miscarriage of justice, and in any other case shall dismiss the appeal:
    • Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred.
    • (2) Subject to the special provisions of this Act, the Court of Appeal shall, if they allow an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered, or if the interests of justice so require, order a new trial.
16. It appears that the choice of disposal of this appeal falls between entering a judgment and verdict of acquittal or, if the interests of justice so require, order a new trial.
17. The death, in circumstances as presented here, is both tragic and serious. The victim and her immediate family, as well as the community within which she lived, are entitled at the least to a finding, where possible, of who was responsible for this killing. They may look for punishment as well but primarily for investigation and prosecution with a view to establishing who the assailant was.
18. By the same token, an accused is entitled to a fair trial within a reasonable time. That right can be found in the Constitution. This death took place in 2015, already some five years ago. The failures which took place within the trial are not the responsibility of the appellant here. They are failures attributable to the National Judiciary. The conduct of this trial fell well below the requisite standard.
19. There is evidence that the appellant was in the immediate vicinity of what happened on this day, and that he held an axe, which is what the victim described as the weapon used to assault her. There is evidence that the appellant wore no shirt and had a blood stain on his left shoulder. All of these circumstances could be explained in a manner inconsistent with innocence.
20. The appellant has been in custody since 12 October 2015. That represents the equivalent of an effective sentence of imprisonment of around six and one half years. He has already faced one trial and in many jurisdictions could not be tried a second time.
21. Should this Court order a new trial after this length of time in these circumstances where the prospect of a conviction remains low? When we consider the interests of justice as required by the Court of Appeal Act, we conclude that such a retrial would not be appropriate.
22. The appeal is allowed, the conviction and sentence are quashed. We order the immediate release of the appellant should he still remain in custody. We make no order for the matter to be tried a second time for the reasons set out above.

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu JA
Member