Regina v Keaviri [1997] SBHC 104; HCSI-CRC 20 of 1995 (14 July 1997)

IN THE HIGH OF SOLOMON ISLANDS

Civil Case No.20 of 1995

REGINA

-v-

NELSON KEAVIRI, JULIUS PALMER. PATRICK MARE KILATU,
KETO HEBALA AND WILLIE ZOMORO

High Court of Solomon Islands
(Muria, CJ.)
Criminal Case No. 20 of 1995

Hearing: 23 June 1997
Ruling: 26 June 1997
Reasons Published on 14 July 1997

R. Talasasa for Prosecution
A. G. H. Nori for Accused

RULING

MURIA. CJ: On 26 June 1997 at the Munda sitting of the High Court I acquitted Willie Zomoro, the fifth accused, and I said I would give my full reasons later. That I now do so.

The accused Willie Zomoro had been charged together with four other accused in connection with the burning of six bulldozers belonging to a logging company, Golden Springs International (SI) Company Limited between 5th and 6th March 1994. All the accused pleaded Not Guilty to the charges. As far as the fifth accused is concerned, the prosecution’s case against him was that it was him who instructed the other accused to burn the bulldozers. Like the other accused, the prosecution evidence against the fifth accused was that contained in his caution statement which was challenged.

The prosecution called four witnesses and further relied on the evidence of four other witnesses whose depositions had been agreed to by defence counsel to be admitted as evidence in the trial. The prosecution also sought to have the deposition of Police Constable Plimmer Vuka together with fifth accused’s caution statement admitted as evidence but after considering submission by both counsel for prosecution and fifth accused the court ruled that Police Constable Vuka’s deposition together with the fifth accused’s caution statement ought not to be admitted. It must be noted that Police Constable Vuka was the police officer who interviewed and took down the fifth accused’s caution statement. The prosecution had been taking every possible step to bring Police Constable Vuka to give evidence at the April sitting as well as the June sitting of the High Court in Munda. Despite all attempts, the prosecution had not been able to secure Police Constable Vuka’s attendance. From the information presented to the court, it was clear that Police Constable Vuka was also taking steps to avoid being reached by the Police by going into hiding in the bush in Makira and not reporting to duties for quite sometime. The only conclusion one can make out by such conduct of a police officer and a prosecution witness is that he was not willing to come to court and give evidence.

In those circumstances the court was not prepared to grant further adjournment of the case which had been hanging over the five accused for over three years in order to wait in hope for Police Constable Vuka to be located and brought from Makira to Munda to attend the trial. The application for adjournment was refused.

Consequently, Counsel for the prosecution sought to have Police Constable Vuka’s deposition and the fifth accused’s caution statement which was obtained by Police Constable Vuka from the accused admitted in evidence. The court refused that application as well on the basis that the very evidence challenged by the fifth accused was now being sought to be admitted without the need to have it tested. That would simply mean that the opportunity for the accused to examine the witness who obtained his caution statement would be lost. In other words, the fifth accused would be deprived of his opportunity to effectively challenge the admissibility of his caution statement. Further, it would also be a violation of the fifth accused’s constitutional right to a “fair hearing” to allow his caution statement admitted in evidence in the manner which deprived him of the opportunity to test its admissibility which he denied.

Having so refused to admit Police Constable Vuka’s deposition and caution statement obtained by him on the fifth accused, the prosecution did not have any more evidence to call. That was virtually the end of the prosecution evidence against all the accused.

By this stage, while there was some evidence before the court against the first to fourth accused, there was absolutely no evidence against the fifth accused. So that at the end of the evidence for the prosecution, nothing was before the court against the fifth accused. Counsel for the fifth accused applied to have the case against his client dismissed and that his client be acquitted.

Mr. Talasasa objected to the application. As I understood it, Mr. Talasasa’s objection was to the timing of the application and not so much as to the fact of the making of the application. He argued that although the prosecution evidence had concluded, he was yet to formally say that the prosecution case was closed. That he said would be after the court ruled on the voir dire. He relied on the assertion that the allegation in the case against the accused was that of a joint enterprise. This assertion was premised on the suggestion that the accused was a party to a joint enterprise and so on the materials before the court there was some evidence to proceed against the fifth accused.

With due respect, as far as the court is able to glean from the materials before the court, there is absolutely no evidence adduced by the prosecution up to this stage even sufficiently enough to put the fifth accused to his defence. The greatest difficulty still faced by the prosecution was the fact that there must be evidence of a joint enterprise first shown. There was no evidence of a joint enterprise adduced by the prosecution. Then there must be some evidence that the fifth accused was a party to that joint enterprise. Again there was no evidence at all to show that the fifth accused was a party to any joint enterprise. So at the end of the prosecution evidence but before the accused were called upon to give evidence or make unsworn statement the prosecution had not adduced any evidence against the fifth accused.

If Mr. Talasasa’s contention is accepted it would mean that the fifth accused would continue to sit in court throughout the rest of the trial even though there was no evidence against him. I do not think any reasonable-minded tribunal would accept such a course of action. Should he continue to remain in court while the prosecution hoped for a drop of evidence possibly from the other co-accused? But even if there was some evidence (which was none) from the other co-accused implicating him, that cannot be accepted as evidence against him. What should the court do in such circumstances? The only sensible course of action to take was to give him back his liberty and set him free. In other words, at the end of the prosecution evidence there was no evidence against the accused so the court, after hearing counsel for the prosecution and accused, dismissed the charges against the fifth accused and acquitted him. That in my view is in accordance with section 268(1) of Criminal Procedure Code which provides:

“When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or anyone of several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty”.

In Solomon Islands, a criminal trial is conducted by a judge sitting alone. He deals with a voir dire hearing as a trial within a trial. The prosecution adduces all the evidence at the one and same trial. It is therefore well within the power of the court to consider the question of the guilt of the accused after the prosecution concluded its evidence but before the conclusion of the voir dire if at that stage there was no evidence against that accused.

There is the added constitutional right consideration here. The accused is “presumed innocent until he is proved guilty or has pleaded guilty”. Section 10(2) Constitution. This right to presumption of innocence cannot be overridden by a mere procedural technique which adds nothing against the accused person who stands trial without any evidence against him.

As there was no evidence against the fifth accused, Willie Zamora, the charges against him must be dismissed and he must be acquitted.

Order: The fifth accused, Willie Zomoro,

Not Guilty and Acquitted.

(GJB Muria)
Chief Justice