Kaipua v Reginam [2016] SBCA 9; SICOA-CRAC 40 of 2014 (22 April 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Pallaras PJ)
COURT FILE NUMBER:	Criminal Appeal Case No. 40 of 2014 (On Appeal from High Court Criminal Case No. 295 of 2013)
DATE OF HEARING:	13 APRIL 2016
DATE OF JUDGMENT:	22 APRIL 2016
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	KAIPUA - v - REGINAM
ADVOCATES: Appellant: Respondent:	Mr H. Lawry, Office of the Public Solicitor Director of Public Prosecutions together with Mr. A Kelesi
KEY WORDS:	Lawyer failing to put instructions: fair trial
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	Allowed
PAGES	1- 3

JUDGMENT OF THE COURT

1. On this appeal against conviction for murder, the Appellant had been given leave to call additional evidence by a single judge. Following the filing of an amended Notice of Appeal with leave the Appellant seeks to establish that he did not receive a fair trial through incompetent or inadequate legal representation, and that evidence which was not available at his trial was now available.
2. Although we were not obliged to determine the application for additional evidence, the implication of it being previously granted is that the additional evidence was not available at trial. In respect of that evidence the witness sought, and we granted, an order that for the time being her name and identifying particulars be withheld and further that on this appeal her evidence be taken in camera. The Director was permitted to cross examine the witness on this point and asked no questions about the genuine or other nature of the witness’s fear for her safety. We make no further comment on that evidence given our decision on the other issue raised on the appeal.
3. Further additional evidence came from the Appellant himself and his former legal representative on the question of adequate legal representation at trial. Although he travelled from some distance to attend the hearing, at our request, in the event we did not receive oral evidence from that previous trial lawyer after hearing the Appellant’s evidence on the point. Suffice it to say that we found that the Appellant was not in terms alleging serious professional negligence on the part of his former lawyer more that his case was not properly and fully put to witnesses during the trial.
4. In an affidavit filed by the Appellant he complained that certain matters he had briefed his trial lawyer about were not put to prosecution witnesses which on its face might be taken as professional negligence on the part of trial counsel.
5. It is clear from examination of the trial record that even the presiding judge was aware that trial counsel had not put all of the Appellant’s case to the prosecution witnesses. This we note from remarks made by the judge beginning at page 75 of the transcript. That exchange, which continues into pages 76 and 77, amply demonstrates that the judge at first instance was aware that the trial lawyer had, for reasons he attempted to explain, failed to put parts of his client’s case.
6. We cannot be sure, and intend not to investigate further, why that was the case. For the purposes of this appeal it is sufficient to note that this occurred and order accordingly. We have no doubt that, the matter having been the subject of some discussion already within the Office of the Public Solicitor, it will receive the appropriate preventative attention in that office.
7. What is not clear from the transcript is why, having heard that admission from counsel, the trial judge did not at that point stop the trial. Having established that there were matters which defence counsel had failed to put to witnesses in accordance with instructions, it was, we feel, incumbent on the trial judge to ensure that this situation was corrected if necessary by the recall of the witness and that there were no more instances of the same behaviour that had previously gone unnoticed during the trial. In short, the trial judge has an obligation to see that the trial is fair.
8. That this did not happen is reason enough for this Court to determine this appeal with an order remitting the matter back to the High Court to be tried again before a different judge. Given that, it is perhaps wise not to say any more than is necessary to explain why we have ordered as we have now in this appeal.
9. The order made in this appeal in respect of the new witness extends, of course, only to this appeal. If it is felt necessary for the order to be continued to cover any retrial, steps will have to be taken in the High Court. With that in mind we encourage counsel to take a little more care in the presentation of material to the trial court than we witnessed in the Court of Appeal
10. In the event the appeal against conviction is allowed and the matter is remitted to the High Court for a retrial.
    

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Goldsbrough P

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Ward, JA

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Hansen JA