Regina v Olifei [2011] SBHC 11; HCSI-CRC 344 of 2009 (18 February 2011)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)

Criminal Case No. 344 OF 2009

REGINA

v

FILIS OLIFEI

Date of Hearing : 17 February 2011
Date of Ruling : 18 February 2011

R. Bay and Kesaka for the Crown
Valenitabua and M. Manaka for the Defendant

RULING

Mwanesalua J:

1. On 26 April 2010, the defendant Filis Olifei was charged under section 200 of the Penal Code in an information that he murdered the deceased Billy Toitoo'ona, in Honiara on 16 May 2009.
   
2. In opening its case, the prosecution says among other things, that, "the defendant is liable for the death of the deceased as he was either the person who actually stabbed the deceased or was a party to the attack by aiding and abetting others or acting pursuant to a common purpose with others with the requisite mens rea of intending to kill or cause grievous harm [Sections 21, 22 and 200 (a) of the Penal Code]"
   
3. The opening also contained the names of Tofasi and Arudola whom the prosecution alleged join the defendant in attacking the deceased with knives. The deceased had five wounds on his body. One on his head, one on his thigh, two on his lower back and one on his right mid-back.
   
4. The deceased was taken to hospital after he was attached, but died at about 6am after being admitted. His death was caused by the stab wound on his right mid-back which entered the right chest cavity, cut a rib and punctured the lung. This caused a haemopneumothorax, which is a loss of air and blood.
   
5. At the close of the prosecution opening, the defence submitted that they were concerned that damaging allegations were made against Tofasi, Arudola, Stanley and George, and that their names be deleted as they had not been charged and brought to court for trial. It was further submitted by the defence that the defendant alone should stand trial, and that only evidence relating to the alleged murder of the deceased by the defendant be adduced by the prosecution at trial.
   
6. Although the court has indicated on page 12 of the transcript that the court would not admit evidence of attacks by other person on the deceased, other than direct evidence against the defendant, the court no longer holds that position. Its present position can be seen on page 13 of the transcript, where it briefly stated that the admissibility of relevant evidence of attacks on the deceased by persons not before the court would be decided upon the discretion of the court.
   
7. The prosecutions have so far called 2 witnesses to give evidence. However, the second of these witnesses has decided to stop giving evidence. He gave no reasons for doing so. He was stood down and left the court.
   
8. In the absence of the witness, the prosecution explained that the witness stopped giving evidence because the prosecution edited the evidence to ask the witness, and, the witness felt he was not allowed to give his evidence fully and freely, so he stopped doing so. The prosecution sought adjournment to seek instructions from the DPP on what to do next in the circumstances.
   
9. After seeking instructions, the prosecution submitted that the court review its ruling that no evidence of attacks on the deceased by other persons not charged should be admitted. As stated above, this is no longer the position held by the court. The court will be guided by the principles in the following case to consider the admissibly of such evidence.
   
10. The general nature of the discretion referred in paragraph 6 above, is described in R v. Quin [1990] Crim LR 588 by Lord Lane CJ. where he Stated:
    

"The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if a judge hears all the relevant evidence which either side wishes to place before it, but proceedings may become unfair if, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet".

Lord Lane CJ went on to state:

"One important factor in the exercise of its discretion will be for the court to weigh the probative effect of the disputed evidence against its prejudicial effect.

11. The court will therefore allow the prosecution to lead relevant evidence on other persons who may have assaulted the deceased during the incident which subsequently led to his death.
    

THE COURT