Regina v Nimelie [2012] SBHC 160; HCSI-CRC 43 of 2009 (16 May 2012)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 43 of 2009

REGINA

-V-

BARNABAS BOLAMI NIMELIE AND JOHN BOLAM VAIKE

HEARING: 15 May 2012
RULING: 16 May 2012

R. Iomea for the Crown
P. Spence (Ms.) for John Bolami Vaike
S. Kalu for Barnabas Bolami Nimelie

Palmer CJ.

1. The defence objects to the admissibility of two documents the subject of a charge against the two defendants, primarily on the ground of legibility but also on the ground that the documents sought to be tendered are only copies of the original. The defence submits that accepting the document would unfairly prejudice the defendants in their defence of the charge.
   
2. According to the evidence of Samson Maloaki ("Samson"), one of the recipients or addressees of that letter, the original copy had been burnt down in a house fire at the end of October 2001 but not before he had made copies of the said document.
   
3. Section 8 of the Evidence Act 2009 ("the Act") abolishes the "Document rules" as they apply to the reception of evidence. This is sometimes referred to as the "best" evidence rule and is now replaced by express provisions set out in Part 8 of the Act. Subsection 87(3) of the Act reiterates that position.
   
4. Section 89(1)(b) of the Act allows evidence to be adduced in relation to a copy of the document in issue. I set out in full below the said provision:
   

"A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods –

(a) ....

(b) tendering a document that –

• (i) is or purports to be a copy of the document in question; and
  
• (ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents;...."
  

5. Section 91(1) of the Act in turn raises a presumption in favour of the authenticity of a document that had been reproduced by such a device in the absence of evidence to the contrary. In my view that would include a copy of the document that had been produced by a fax machine.
   
6. Both Exhibits "A" and "B" marked for identification fall squarely within the said exception. I am satisfied the evidence adduced by prosecution demonstrates that an original document was received by Samson Maloaki ("Samson") on or about 9 October 2001 and which Exhibits "A" and "B" are identical or similar copies of a part from the handwritten notations made on them. He told the court that he made several copies of them and one of which was faxed to his brother, Bartholomew Basia on 3rd December 2001. Mr. Basia confirms receiving a copy of that fax which forms the exhibit marked as "A".
   
7. I am satisfied that the original of the letter dated 8 July 2001 was received by the witness Samson. I am satisfied too on the evidence adduced that he was able to make copies of that letter as well before the original was destroyed by fire at the end of October 2001.
   
8. Exhibit "B" was produced only to Counsel Iomea on the day of the trial by Samson purporting to be a better or clearer copy of the original document.
   
9. I am satisfied both documents can be tendered as exhibits in the trial proper. Issues of the content and legibility and therefore possible prejudice and unfairness are matters which go to weight which can be raised proper at trial during examination of witnesses and or in submissions.
   
10. The objections raised against their admissibility accordingly are rejected.
    

Orders of the Court:

Dismiss objection to the admissibility of both documents marked as exhibits "A" and "B" for identification.

The Court.