HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 067 of 2004

REGINA

–V-

JOSEPH NONEKE,
LIVAE MEQO and RUSSELL EDOLO

At Honiara: Trial for murder

Date of Hearing: 9th May 2005
Date of Ruling: 9th May 2005

M. McColm of DPP for the Plaintiff
M. 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 Evidentiary Points

Brown PJ:	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:

"s.- 264 No witness who has not given evidence at the preliminary inquiry shall be called by the prosecution to 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 Pitali who was not called at the committal nor know of, at that time in October last but one who came to the attention of the prosecution following the lead given by an earlier witness in these proceedings. Tony Siope, this earlier witness had named this fresh witness sought to be called, in the course of a statement he made to police about the 4th or 5th May at Munda.

The statement then (for various reasons principally dealt with in the evidence of Const. Romaldo Periera, one of the case officers) 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, today 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 the earlier Crown witness, for Mr. Anders said, he did not ask questions of Mr. Siope. 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 and at the time of the cross-examination of Siope, it seems. 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 in 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 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, to 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 discretion to prevent the taking of such evidence, is plainly wrong. Mr. Anders argued strenuously using his subjective 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 Pereira as somehow casting dark shadows over any second Siope statement 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 judges 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 to its importance by virtue of the mere fact of its admission) outweighs its usefulness. Where a trial judge sits alone, he shall for instance warn 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 ed. Seminars on Evidence 1968 LBC (based as it is on the laws of evidence applicable in NSW, PNG and the Solomon Islands at that time and now, following as it does from the adopted evidence laws applicable in UK at our Independence)

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 supposed doctrine of prejudice brought about by a possible shift of the evidentiary burden.

Glass at 60 refers to Maneti v M & M.T.B. (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 now to be heard (notwithstanding the absence of his proof of evidence before the court heard from Tony Siope) may be corrected by recalling Tony Siope. But to say I should refuse to hear the witness on this basis is plainly wrong. Phipson on Evidence (12th edit Sweet & Maxwell) at 61 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 (1981) PNGLR 536 at 541;

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 the ratio decidendi in 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 incumbering on a judge when sitting with a jury dealing with statements from accused, with the prosaic 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 might this evidence notwithstanding late notice. There is no evidentiary rule shown which requires me to exclude this fresh witness's evidence.

THE COURT