R v Abia [2019] SBCA 4; SICOA-CRAC 42 of 2017 (12 April 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Abia v R
Citation:
Decision date:	12 April 2019
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands(Kouhota PJ)
Court File Number(s):	CRAC 42 of 2017
Parties:	Joel Abia v Reginam
Hearing date(s):	29 March 2019
Place of delivery:	High Court of Solomon Islands, Honiara
Judge(s):	Goldsbrough P Ward JA Wilson JA
Representation:	Ms. M Suifa’asia for the Appellant Mr. G Gray for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Criminal Procedure Code, s274
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	The Appeal is allowed
Pages:	1 - 4

JUDGMENT OF THE COURT

1. This is an appeal against conviction and sentence brought by Joel Abia (the Appellant). The Appellant was convicted of murder on 13^th October 2017 and sentenced to life imprisonment. During sentencing, the trial judge recommended a non-parole period of twenty years.
2. On an information filed on 17 February 2017, the Appellant was tried for the offence of murder of Charles Meti in Honiara on 30^th April 2016. He was convicted after a trial which took place on 15^th and 16^th September 2017. Sentencing took place on 13^th October 2017 and a notice of appeal was filed by trial counsel on 17 November 2017. Since that date the Appellant has ceased to be represented by trial counsel and is now represented by the Office of the Public Solicitor. In submissions on the appeal the grounds of appeal against conviction are said to be;
   • (a) that the conviction cannot be supported having regard to the evidence adduced at trial
   • (b) that the court failed properly to direct itself on the issue of circumstantial evidence
   • (c) that the court was in error in permitting a witness to identify the Appellant by way of a dock identification
   • (d) that submissions from the Crown were filed following the defence closing address, thereby undermining the right of the Appellant to have the final address.
3. The deceased, Charles Meti, had been in the company of others at the White River playing field. He had been drinking. It is not in dispute that he died as a result of a stab wound to his back following an argument. The dispute arises as to who was responsible for the fatal stab wound. Evidence of the events of the evening came from four civilian witnesses. In addition, medical evidence came from a doctor. That evidence is not controversial.
4. Application was made at the outset of this appeal for special leave to adduce further evidence. That application was made recently and, having been served on the prosecution, was the subject of preliminary submissions. In essence, the evidence is of tattoos on both the Appellant and another male.
5. That application to adduce further evidence was refused, but for reasons which will become apparent we decline to set out reasons for that decision in this judgment.
6. After establishing quite how the Respondent was able to produce a submission in response to defence closing submissions, counsel appearing for the Respondent conceded that there had in fact been a procedural error fatal to a fair trial in the High Court. Section 274 of the Criminal Procedure Code provides for the order of closing addresses before the Court when an accused person makes the choice to give no evidence and call no evidence on his or her behalf.
7. The prescribed order is that the Crown shall make its closing address and then the defence will make its closing address. After that the Crown has no right to address the court other than to raise anything that amounts to a mistake in the defence submission, e.g. as to what appears in a transcript, or on a question of law still in issue.
8. In this case submissions for the Appellant had been served in advance on the Respondent and the Respondent seized the opportunity to respond to a matter contained in those submissions. That should not have been allowed.
9. In normal circumstances where addresses are oral, the Crown would make their address first and then the defence would make a final address. Where submissions are to be made in writing, even if those submissions are served on the opposing side, the Crown does not then gain any opportunity to comment by way of response to that closing address other than set out below, i.e. correct factual mistakes. To allow such a response is to defeat the rule contained in section 274, which will result in a trial not according to law.
10. For that reason, this conviction is quashed. After hearing submissions, we determined that the matter should be tried de novo before a different judge. As the matter is returning to the High Court for a retrial we would not wish to give any reasons on the further evidence point that may potentially affect that retrial.
11. In the event the appeal is allowed, the conviction quashed and a trial de novo ordered. Leave to bring an application for bail is given either to this Court or to the High Court.

Goldsbrough P
Ward JA
Wilson JA