Reginam v Bata [1998] SBCA 6; CA-CRAC 1 of 1998 (24 July 1998)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from a judgment of The High Court of Solomon Islands (Palmer J.)
COURT FILE NO.	Criminal Appeal No.1 of 1998 (Appeal from High Court Criminal Case No. 26 of 1997)
DATE OF HEARING:	23 July 1998 in Honiara
DATE OF DELIVERY OF JUDGMENT:	24 July 1998
THE COURT:	KAPI, (Ag) P., Casey JA, Kabui JA.
PARTIES:	REGINAM v. HENRY BATA KEN ARASI
ADVOCATES
Appellant	F. Mwanesalua
First Respondent	M. Samuel
Second Respondent	J. Gordon
KEY WORDS:	Appeal by the Director of Public Prosecution against acquital - Question of law only. Cross-examination - Prior inconsistant statement - where statement is denied - proof of prior inconsistant statement, Criminal Procedure Act (UK), SS 4, 5 applicable under Sch 3.11 of Constitution of Solomon Islands.
EX TEMPORE/RESERVED	Reserved
ALLOWEDIDISMISSED:	Dismissed
PAGES:	1 - (Whichever is the last page on the final draft)

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IN THE COURT OF APPEAL OF SOLOMON ISLANDS

BETWEEN

REGINAM
(Appellant)

AND

HENRY BATA
(First Respondent)

KEN ARASI
(Second Respondent)

Coram: Kapi JA, Casey JA, Kabui JA

Date and Place of Hearing:	:	23 July 1998 Honiara
Date of Delivery of Judgment:	:	24 July 1998

JUDGMENT OF THE COURT

This is an appeal by the Director of Public Prosecutions (hereinafter referred to as the DPP) against the acquittal of the respondents by the High Court on the charges of murder contrary to 193 of the Penal Code. The DDP is entitled to appeal against an acquittal on a question of Law only pursuant to s 20A of the Court of Appeal Act 1978 (as amended). The ground relied upon is as follows:

“The trial judge was wrong in law in drawing evidence from a previous statement by May To’ona PW 11 which was not put in evidence, and which evidence was used to impugn the credibility and reliability of PW11’s evidence on material events which she saw took place on night of 3 may, 1997 at Daosulu Village. The evidence drawn by the trial judge was wrongly admitted and was inadmissible.”

In order to appreciate the issue raised by this ground it is necessary to briefly set out the prosecution case against the respondents and the manner in which the trial judge dealt with the particular piece of evidence in question. The prosecution case was that on the evening of 3rd May 1997, the respondents assaulted the deceased Jeffrey To’ona around the back of the neck at Daolusu and carried him away and subsequently drowned him among the mangroves outside Gwaunasu’u.

The prosecution relied upon witnesses who gave evidence of the movements of the deceased and the respondents to show that the respondents were in close proximity to the place and time of the murder The prosecution relied on the evidence of May To’ona (hereinafter referred to as PW11) the only eye witness to the killing. The effect of her evidence was that she saw the respondents assault the deceased and then they carried him away and subsequently drowned him:

The trial judge in assessing the evidence of PW11 stated:

“As to the reliability of PW11’s evidence, there were also a number of pertinent discrepancies which this court cannot overlook. One of these was her evidence on oath that she was standing outside DW2’s residence when the assault was committed. In her statement to police dated 13th October 997 however, she states that she was standing beside their house. The difference in the distance from the deceased’s house to the scene of the assault is quite significant. From the deceased’s house to the scene of the assault is about 30 metres and from DW2’s house to the scene of the assault is only about 16 metres (note measurements house to the scene when a locus in quo was taken at the scene). Bearing in mind that the only lighting was at DW2 house (DW2’ house is located about half-way between the deceased’s house and the petrol shed and the lighting came from a hurricane lamp), If she was standing at her parent’s house, the likelihood of her being able to see the assault quite clearly is much less than if she was standing beside DW2’s house. The distance from DW2’s house to the petrol shed is about 16 meters.”

Later in his judgment the trial judge continued:

“Further, it should also be noted that in her unsworn statement to police recorded on 13th October, 1997, she stated very clearly that the canoe was parked outside their house and not at the house of her Grandfather, At page (2) paragraph (1) she states:

‘Stick ia uncle Henry tekem inside long canoe wea emi stap mama na house blong me fala long sea’

And at paragraph (3), she states:

‘Arasi then pulum go small stick canoe, wea hem anchored long front house belong me fela.’”

The trial judge extracted three points from the statement:

(a) That PW11 was standing beside her house

(b) That the first respondent took a stick from inside the canoe which was anchored beside PW11’s house.

(c) That the second respondent took the stick from the canoe which was anchored near PW11’s house.

The DPP submits that the trial judge erred in law in relying on a prior inconsistent statement made by PW11 to the police without the statement having been admitted in evidence at the trial.

The law in Solomon Islands on this point is governed by sections 4 and 5 of the English Criminal Procedure Act, 1865 which is applicable here by virtue of Sch 3.1 of the Constitution of Solomon Islands. The relevant provisions are as follows:

“4. As to proof of contradictory statements of adverse witness. If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the indictment or proceeding and inconsistent with his present testimony does not distinctly admit that he has made such statement, proof may given that he did in fact make it, but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

5. Cross-examinations as to previous statements in writing. A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory Proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection and he may thereupon make such use of it or the purposes of the trial as he may think fit”.

It is clear that a witness may be cross-examined as to any previous statements made in writing or otherwise. If a witness denies a prior inconsistent statement then his attention must be drawn to the parts which may be used to contradict him and the contradictory statement may be admitted in evidence as proof of contradiction.

In the present case, PWl1·was cross-examined by defence counsel on one matter only. That was in relation to where she was standing when the deceased was assaulted. PW11 agreed that she did make a statement to the police on the 13th October 1997 that she was standing near her house. In cross-examination she agreed that what she told the police was a lie. She did not deny the statement and therefore it was not necessary to prove the statement at the trial on this point. In our view the trial Judge was perfectly entitled to take into account the discrepancy between the statements and the admission by PW11 that she lied to the police as relevant consideration in assessing the reliability of her evidence. We do not find any error in this. But he should not have gone on to compare her opportunities of seeing what happened from her parents’ house and from DW2’s house.

The other two matters relied upon by the trial judge were never the subject of cross-examination by defence counsel and the statement in question was never admitted in the trial. In this regard we agree with the DPP that the trial judge erred when he made reference to these matters in the statement given to the police on 13th October 1997.

The DPP further submits that this error seriously affected the prosecution case and therefore we should set aside the order of acquittal and refer the matter back to the High Court for a retrial.

We consider that the error made in this case is not serious enough to affect the decision on acquittal. We have come to this conclusion on the basis that this was not the only reason the trial judge treated this witness as unreliable. The trial judge considered the reliability of PW11 as against the whole of the evidence. After assessing the evidence of each of the witnesses he stated the fundamental nature of the difficulty in the prosecution case:

“The prosecution case is that the deceased was already at Daolusu having his dinner when this two arrived according to the evidence of PW11.

Unfortunately, according to the virtually undisputed evidence of PW7, the deceased was still at Talakali between 8. 00 - 8. 30 pm. This presents a major discrepancy in the timing of events as sought to be presented by Prosecution. According to the crucial prosecution witness, PW11, the sequence of events would be that the deceased arrived first, then the two accused shortly thereafter. The timing of events however simply do not correspond. This directly impinges upon the prosecution case.”

Later in his judgment the trial judge continued:

“When all the evidence is put together, shifted, assessed and weighed, I find that the major discrepancy referred to in this judgment, has not been satisfactory accounted for and case explained away, such that I can say that am sure about these two accuseds’ involvement. There is real doubt in my mind whether the deceased did reach Daolusu safely, and if he did, the timing and sequence of events simply do not correspond with the alleged time the accuseds’ were alleged to have also reached Daolusu. I find there is an unbridgeable gap, a missing link in Prosecutor’s case which raises a doubt, and that doubt must go in favour of these accuseds,”

It is clear from this that there was a serious flaw in the prosecution case.

Therefore the ground of appeal cannot succeed. The formal order of the Court is that the appeal is dismissed.

Sir Mari Kapi
Justice of Appeal

Sir Maurice Casey
Justice of Appeal

Mr. Justice Frank Kabui
Justice of Appeal