Reginam v Dausabea [2007] SBHC 29; HCSI-CRC 433 of 2007 (7 May 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 433 of 2007

BETWEEN:

REGINAM
Crown

AND:

CHARLES DAUSABEA, NELSON NE’E
AND ALEX BARTLETT
Accused

Date of Hearing: 17 April 2007
Date of Judgment: 7 May 2007

Mr McColm for the Crown
Mr Ashley for Charles Dausabea
Mr Lawrence for Nelson Ne’e and Alex Bartlett

JUDGMENT

Cameron PJ

Introduction

1	The Crown applies for orders in relation to 3 Crown witnesses intended to be called for the prosecution in this trial.
2	The trial, which is due to commence on 14 May 2007, arises from charges against the defendants in relation to the Chinatown riots in Honiara in April 2006. They face a number of charges, including that they incited the riots.
3	Two of the 3 accused are members of Parliament in Solomon Islands and it is common ground that they are persons of influence.
4	The orders which the Crown seek are:
	(a)	That the 3 witnesses retain their existing pseudonyms, namely Chinatown 1, Chinatown 2, and Anonymous 2 when giving evidence at trial, and that no particular tending to reveal their identities be disclosed.
	(b)	That at the time of their giving evidence, each of them be screened off from public viewing (though they would be able to be seen by the accused persons).
5	The grounds of the application are that the 3 intended witnesses, for good reasons, are fearful of retribution from supporters of the accused should their identities become generally known.
Grounds for Application
6	The Crown relies on an affidavit filed by a Judith Puurand of the Participating Police Force.
7	Ms Puurand attests to taking statements from the witnesses Chinatown 1 and Chinatown 2 as to their fears, and speaking with Anonymous 2 by telephone on the same subject. I summarise the main points of that evidence, dealing with each witness in turn:
	(a)	Chinatown 1
		(i)	This witness made a statement on 22 September 2006.
		(ii)	The witness says that in mid July 2006, while at the Kukum market, he was shouted at by a John Harold, who said, "Charles, you and Frank Hou have been making false statements against, Honourable Member Charles DAUSABEA". The witness also says that John Harold told him to be careful. He took this to mean that Charles Dausabea had people who could kill him.
		(iii)	In late July 2006 the witness says he was visited by 5 teenage boys, who insisted that it was he who was making statements against Charles Dausabea.
		(iv)	The witness says that he is known to Charles Dausabea and his friends and family, as the witness is married to his cousin.
		(v)	The witness has heard rumours that witnesses in this case have to be careful.
		(vi)	The witness says that all 3 accused know him and know what he looks like.
		(vii)	The witness further says:
			"I have concerns that there may be people who do not know what I look like. Once I am in the court room those people will then know who I am and what I look like. This frightens me very much, because I know there are people trying to stop witnesses".
		(viii)	The witness further says: "I want to isolate myself and not publicse [sic] myself in the court room. I am afraid of being confronted in the court room and when I leave the court room".
	(b)	Chinatown 2
		(i)	This witness also made a statement on 22 September 2006.
		(ii)	In that statement, this witness says that since becoming involved in the case he has had to give up his work as a mechanic for fear of people going to his workplace to hurt him.
		(iii)	The witness says that Charles Dausabea and his family knows what he looks like, and that Charles Dausabea knows others that also know the identity of the witness.
		(iv)	The witness further states: "I am frightened of the people who I do not know but who will know me through others if I sit in the same court room. They will see me for the first time and remember me".
		(v)	The witness continues: "I am scared to walk past the people in the court and make my statement in front of people who don’t know what I look like but may have heard of me. I am then worried this will affect my family as well. There is a big hatred of me by Charles Dausabea supporters towards me. I would be fearful of my safety and intimidated to give my story".
		(vi)	Ms Puurand says that she spoke with the witness on 4 November 2006, who advised he was still scared because Charles Dausabea had pointed at him during a chance meeting.
	(c)	Anonymous 2
		(i)	Ms Puurand says that on 3 October 2006 this witness spoke to her from an off shore location.
		(ii)	Ms Puurand says that to the best of her knowledge the person is still off shore and "is reluctant to return to the Solomon Islands due to the fears they possess for them and their families".
Balancing Exercise
8	The Crown submits that whether and to what extent orders of this type are necessary is a balancing exercise between the interests of the accused on the one hand and the protection of witnesses on the other hand, to ensure as far as possible a fair trial. I accept this.
9	There will be cases where witnesses will be reluctant to give truthful evidence for fear of reprisal. This has to be balanced against the interests of an accused in knowing through disclosure in advance of trial what evidence is to be brought against him and by whom, in order to give the defence a proper opportunity to prepare for trial (and make any relevant checks as to the character and credibility of the intended Crown witnesses).
10	There is another dimension, and that is the interests of the public in being permitted wherever possible to observe criminal trials in open court, a right recognised in section 64 of the Criminal Procedure Code.
11	It is for the Crown to persuade me that the circumstances in this case are such that orders of this type are necessary, representing as they do a departure from the normal rule that criminal trials shall be held in "an open court to which the public may have access" (section 64 Criminal Procedure Code).
12	I am not persuaded that the orders are necessary to ensure a fair trial in this case.
13	I take the view that the evidence provided by the Crown to support its application is not sufficiently substantial to warrant a departure from the normal rules of a trial in an open court.
14	I note that:
	(a)	The only evidence of anything approaching a direct threat is in the statement of witness Chinatown 1, who spoke of being accosted at a market in July 2006 and in the same month by some teenage boys – in my view this evidence is not sufficiently compelling to warrant the orders sought.
	(b)	Other than the threats referred to, the fears expressed by each of the witness Chinatown 1, Chinatown 2 and Anonymous 2 are not supported by specific grounds – they appear to be speculative in nature and largely based on rumour.
	(c)	No recent statements or affidavits from any of the 3 witnesses were provided to the court.
	(d)	If, as appears likely, the identities of Chinatown 1 and Chinatown 2 are already known to Charles Dausabea, screening them from public view while giving their evidence is unlikely to add any significant measure of security to them.
	(e)	There were no specific grounds advanced on behalf of Anonymous 2 to substantiate that person’s apparent fears for his or her safety.
15	For these reasons, I decline the Crown’s application for the continued use of pseudonyms and the use of screens.
BY THE COURT