HIGH COURT OF SOLOMON ISLANDS
At Honiara:

Criminal Case No. 067 of 2004

REGINA

–V-

JOSEPH NONEKE,
LIVAE MEQO and RUSSELL EDOLO

Date of Hearing: 9th May 2005

M. McColm of DPP for the Plaintiff
Martin Anders, of Public Solicitors for the defendant for Joseph Noneke 
C. Baker, of Public Solicitors for the defendant Livae Mequ
C. Godbolt of Public Solicitors for the defendant Russell Edolo

Ruling on admissibility of proposed question going to issue of identification when not previously disclosed to defence counsel

Brown PJ:	In course of evidence it became apparent the witness had seen the two SI in the white ray boat at Noro while he was selling at the market. He gave a story about that, and it was apparent he had occasion to see them when he went about twice a week on Monday and Friday.

Mr. McColm seeks to ask the witness whether the men at the market who were in the ray boat could be seen in the court. Defence counsel object. Mr. Anders says it was not apparent on the man's deposition that this manner of identification was likely and that the defence was not placed on notice of such intention to lead this evidence.

When I listen to the earlier statement (on the voir dire if you like) of the witness where he says "I could clearly identify two Solomon Island boys" it is not beyond the realms of possibility that this witness may be lead towards this manner of identification especially after the market story. Again it is not imperative defence be placed on obvious notice as it were of all ramifications of the witness' evidence. Since the evidence which may have been anticipated to some extent, has emerged in court today, I do not think it appropriate, now, for the Prosecution to go away and take a deposition of that very statement. It is on the record. Defence may cross examine once they have had an opportunity to speak to their clients, if the evidence comes as a surprise.

Mr. Anders impliedly says it would be unfair to admit this question for it has not been alleged by prosecution previously of this witness, the extent of any conversation or names of these two Solomon Islanders. But as Mr. McColm says, the evidence is clearly relevant and admissible. I agree.

Mr. Godbolt points to the fact that it really is dock identification and in these circumstances should be rejected. He bases his assertion on I presume underlying common law decisions affecting the admissibility of such identification means, known as "dock identification".
He says it must have so little weight, it could not assist the court and presumably its probative value must be slight. But that phraseology is often heard in jury trials for it is open to a judge there, to refuse to allow the line of questioning for a jury may be led into mistake where its evidentiary value may be great but is probative value is slight. Where such evidence is admitted the judge must warn the jury in terms, in Australian courts, of the warning in R v Burchielli [1981] VR611 at 617-618]

"1.	That the experience of lawyers (which jurors have probably not shared) have taught them that mistakes in identification do, not infrequently, occur.

2.	That honest and convincing witnesses may be mistaken, particularly where their opportunities for observing the suspect are limited.

3.	That the presentation of a single suspect (as in the case of Mrs. Campbell) so greatly increases the liability to mistake as to make it extremely dangerous for a jury to assign any probative value to Mrs Campbell's evidence of identification.

4.	That identification form police photographs is undesirable …

5.	That two defective identifications do not necessarily support one another."

So also R v Turnbull [1977] 1 AB 224; [1976] 3 All ER 549; 63 Cr App R 1, the warning was;

"Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example, by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?" (Ross on Crime Law Book Co 2002 at 494)

I so warn myself acting as a jury but the evidence is relevant. On the strength of Turnbull it is presumed to be admissible. Should I disallow the question on the basis of fairness to the accused? In R v Clark (1996) 91 A Crim R 46 (SA CCA, in Britten (1988) 51 SASR 567 King CJ said;

"that a witness who has identified an accused person out of court should always be asked at the trial whether he or she can identify the accused in court. It gives an honest witness an opportunity of reconsidering the matter and it may also stop the jury from inferring wrongly from the absence of a dock identification that the witness is unable to make one. Of course, these are negative aspects of such evidence. Probably the second identification will add very little, if anything, to the first. (It may, conceivably – the witness may perceive in court some significant feature of the accused that was not observable in the photograph). There was also, as the learned trial judge observed, some value in a dock identification for the jury, in a case involving multiple accused, in understanding which accused was alleged to have done what. Any risk that the jury's common sense does not guarantee that a dock identification does not generally prejudice the accused will be removed by the usual direction in the summing up".

Consequently in fairness, I consider that prerequisite question should be put to this witness.

What weight to place on the replies if any must be a matter after hearing all the evidence and counsel's addresses.

But I will allow a prerequisite question to be put and if answered in the affirmative, Mr. McColm's question.

Prerequisite question.

"Are you able to say whether you would recognise those persons you saw at the market and in the boat, today?"

Ruling on Evidentiary Point

Fairness in a criminal trial is governed principally by rules relating to evidence and procedure. In this case the procedure dealing with the issue as to whether or not a particular witness may be called is covered by the Criminal Procedure Code s.264 which states:

No witness who has not given evidence at the preliminary inquiry shall be called by the prosecution t any trial, unless the accused person has received reasonable notice in writing of the intention to call such witness.

The notice must state the witness's name and address and the substance of the evidence which he intends to give. The court shall determine what notice is reasonable, regard being had to the time when and the circumstances under which the prosecution became acquainted with the nature of the witness's evidence and determined to call him as a witness.

Provided that when, under the provisions of section 180, the plan of a surveyor or the report of a medical officer or other witness has been put in during the proceedings at the preliminary inquiry, and the surveyor, medical officer or other witness himself is called at the High Court trial, notice of the evidence of such surveyor, medical officer or other witness shall not be required to be given to the accused person.

For Mr. McColm seek to call a witness one James Pital who was not called at the committal nor know of, at the committal in October last but one who came to the attention of the Crown following the lead given and an earlier witness in these proceedings, one Tony Siope who had named this witness sought to be called in the course of a statement made to police about the 4th or 5th May by Tony Siope at Munda.

The statement then (for various reasons) of this particular witness sought to be called, was not obtained until Saturday last 21st and given in terms of s.264, to the defence counsel on Monday morning.

Defence counsel object to the witness now being called. The Counsel for Joseph Noneke led the team. Mr. Anders first disputed Mr. McColm for the Crown's assertion that opportunity to put the defence case was given by the cross examination of Tony Siope for Mr. Anders said, he did not ask questions of Mr. Siope for that evidence now sought to be adduced is inculpatory of his client to the extent that the Crown case is materially different to that opened upon by Mr. McColm at the trial's commencement. Be that as it may, Mr. Anders insisted that it was incorrect for Mr. McColm to assert the witness Tony Siope was cross examined at length when that was not the case on his part. For clearly if this proposed witnesses evidence had been opened to Mr. Anders, earlier, his opportunity to impeach the credit perhaps, of this fresh witness, via cross examination of Tony Siope would have arisen.

Mr. McColm anticipates this and says Tony Siope may be recalled for he remains available about Honiara. So clearly this issue is one relating to evidence, not procedure, as dealt with by the Code.

In so far as the time frame in which the statement of this proposed witness has come to Mr. Anders, on the basis of what I have heard today from the case officer Court. Romaldo Siope Pereira, Mr. Anders says he has no issue with that, which I take to mean he accepts the manner in which the notice has been given is "reasonable" in the sense found in s.264 para 2.

Mr. Baker adopted Mr. Ander's argument as did Mr. Godbolt so that in so far as s.264 is concerned on the procedure issue, I accept counsels concession that the notice to call falls within the terms of the section. If I have misapprehended counsel's submission for he does rattle on at speed when I am bound to record as best as possible the arguments advanced with all the evidence as the record of proceedings (in the aura of silence which envelopes the likelihood or not of a transcript from the tape recording) then I should say I am quite satisfied on the evidence that I have heard, the proposed witness is relevant, was identified subsequent to the committal and notice has within the bounds of reason, been given defence on terms of the 2nd para., s.264.

What remains to be decided however is whether discretion still rests with me to exclude this witness on some basis of evidentiary fairness. Mr. Anders says the Criminal Procedure Code s.264 is not exclusive of all matters for consideration on the question of whether this additional witness should be called, and with that I agree. The matters to which he points as relevant for my consideration are the very same matters addressed by Mr. McColm and are matters of evidence not procedure governed by the Code.

Mr. Anders argued the common law doctrines dealing with admission of evidence were subject to the right in a trial judge to refrain to allow particular evidence which may "prejudice the defence where it may suffer a shifting of case against the accused". He spoke of "reliability" and "relevance" in the same tone.

Frankly these latter, reliability or relevance cannot give rise to the exercise of a discretion in a trial judge sitting without a jury to refuse to hear a particular witness where relevance is apparent as it is here. Reliability is a matter for address perhaps at the end of the trial but cannot be used as a guide before the evidence is heard, ground the exercise of discretion to exclude. And to suggest a judge should, where the evidentiary burden may shift (as is suggested here for Mr. Anders says the evidence will inculpate his client) in the course of a trial, seriously consider exercising a discretion to prevent the taking of such evidence, is plainly wrong. Mr. Anders argued strenuously using his subject view of previous witnesses evidence to support his views about their truthfulness or otherwise, to suggest that the proposed witnesses evidence must thereby lack reliability and hence should not be heard. He criticised Constable Pareira as somehow casting dark shadows over a second
Siope statement (indirectly criticised Siope when he purposely refrained from cross examining him on that issue) and seeks to rely on that criticism as grounds to exclude this fresh evidence.

It must be said rules of evidence are the same in civil and criminal case, but in jury trials jduges may exclude evidence where its probative value is slight and the risk of allowing it before a jury (giving rise presumably in a juries mind its importance by virtue of admission) outweighs its usefulness. Where a trial judge sits alone, he shall for instance sworn himself of the dangers of convicting in sexual assault cases on the evidence of the complainant without corroboration for instance but that course is open to him provided he alludes to the fact.

The doctrines dealing with the exclusion of relevant facts are succinctly addressed by Glass:

In criminal case, although the rules of evidence are the same as in civil cases, evidence which is strictly admissible is frequently excluded by the Judge because of the prejudicial effect which it may have (see the remarks of Lord Moulton in Rex v Christie (1914) A.C. 545 at pp. 559-560)

So far as prejudice is concerned, Glass refers to the remarks of Lord Moulton in R v Christie (1914) AC 545 at 559-560:

It is a rule of law that an incriminating statement made in the presence and hearing of the defendant, even on an occasion which would reasonably be expected to call for some explanation from him, is not evidence against him on his trial of the facts therein stated, save in so far as he has accepted the statements.

But a mere denial by him of the truth of such a statement does not in law render that statement inadmissible against him. To this extent Norton (1910, 2 K.B. 496; 5 Cr. Ap. R. 63) is overruled.

He refers to "privilege", "character and convictions" and similar facts "hearsay" and "opinions" but nowhere does he touch on any support doctrine of prejudice brought about by a possible shift of the evidentiary burden.

Jeans at 60 refers to Napenti v Memtb (1954) Argus LR 283 where Sholl J said that a judge in a civil case has no power to include evidence on the ground that it is of slight weight and calculated unfairly to prejudice one party.

And so it is in a criminal trial sitting without a jury. Any possible prejudice by virtue of allowing this witness shoe proof was not with defence counsel before hearing Tony Siope for instance may be corrected by recalling Tony Siope. But to say I should refuse to hear the witness on this basis is plainly wrong. Phipsons (12th edit Swat & Maxwell) at deals with it thus:

"In practice, therefore it is preferable to use the terms "relevant" and "admissible" simply meaning by the former that which is logically probative, and by the latter that which is legally receivable, whether logically probative or not".

A very good exposition on that theme is found in the judgment of the late Sir Buri Kidu, CJ in the State –v- Malala Hore:

Both the Court of Appeal and the House of Lords in Sang's case held that a trial judge had not discretion to refuse to admit relevant admissible evidence merely because it had been obtained by improper or unfair means. The exceptions are admissions and confessions and evidence obtained from the accused after commission of an offence. Lord Diplock said, at p.1231:

I would accordingly answer the question certified in terms which have been suggested by my noble and learned friend, Viscount Dilhorne, in the course of our deliberations on this case. ([1977] Crim. L. R. 104). A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effects outweighs its probative value. ([1973] Crim. L.R. 45). Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur".

Viscount Dilhorne in agreeing with Lord Diplock said at p. 1235: "My answer to it has with my consent been incorporated by my noble and learned friend, Lord Diplock, in his speech and so I need not repeat it.

I am of the opinion Sangs case should apply here. The exceptions to admissible evidence touched by the late Chief Justice deal with admissions and confessions and other evidence obtained from the accused in circumstances of unfairness but no such exception effect us here. I feel that perhaps Mr. Anders may have been a little enthusiastic in his argument, possibly confusing the duty incumbrant on a judge when sitting with a jury dealing with statements from accused, with the prosiac rules of evidence which on the strength of Sangs case, must permit a prosecutor the right and opportunity to call this fresh witness. For if evidence illegally obtained may be considered in the matrix so right this evidence notwithstanding late notice. There is no evidentory rule shown which requires me to exclude this fresh witness's evidence.