Regina v Nguyen Van Thang [2012] SBHC 93; HCSI-CRC 150 of 2011 (22 August 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Criminal Case No. 150 of 2011.

R

V

NGUYEN VAN THANG.

Date of Hearing: 21st August, 2011.

Date of Ruling: 22nd August, 2011.

Ms. Walenenea and Mr Naigulevu for the Applicant/Crown.
Mr. Oshea for the Respondent/Accused.

	RULING.
1.	Faukona J: This application is filed by the Crown pursuant to section 118 (1) (a) and (b) (i) or [ii] of the Evidence Act. The application seeks to admit the statement of Nguyen Van Toan given to Police on 15th February, 2011, to be admitted as evidence in this trial.
2.	Section 118 (1) contain general admissibility of hearsay evidence as against the hearsay rule. It enumerates the circumstances where hearsay statement is admissible. One which the Crown relies on is (a) or (b) (i) or (ii) which uphold three situations. One that the circumstances relating to the statement provide reasonable assurance that the statement in reliable; secondly, that the maker of the statement is unavailable as a witness. Thirdly that undue expenses and delay would be caused if the maker of the statement is required to be a witness.
3.	Mr. Nguyen Van Toan was a victim of an unlawful wounding charge. Following the incident on 2nd February 2011, which occurred on a foreign fishing boat MV Pacific Pride, Mr Toan gave a statement to Police during the course of a normal Police investigation on 15th February, 2011. Mr Toan was a citizen of Vietnam. At the time of the incident he was working on the boat MV Pacific Pride.
4.	After the incident Mr Toan returned home to his home country in Vietnam.
	The Crown argues that the statement by Toan was signed by him and a witness Office after it was translated to him; affirm by certificates attesting to the accuracy of the statement. He knew the consequences should he give a false statement.
5.	The statement of Mr Toan described he was attending his clothes in his bed when the accused without warning attacked him and stabbed him on the right shoulder with a knife and then quickly left the room.
6.	The statement was obtained under the circumstances where the stabbing was preceded by the fatal wounding of another crew member. Those incidents were investigated by Police where the statement of Toan was obtained.
7.	The Crown further submits there are evidence that corroborates Mr Toan's evidence, in particular, evidence of Cao Ziu Siang, Dr Baerodo who attended Toan and circumstantial evidence of those who saw him exit his room and stumbled on the deck as Dinh Hung, Chan Sheng and Futrohman; and as well as the photographs.
8.	Mr Oshea who represent the accused submits nothing as to the law in relation to tendering of statement of a witness affected by circumstances in section 118 (1) of the evidence Act. However, his concern basically that the Crown and Police are obliged by accepting responsibility ensuring witnesses are located and attending trial rather than relying on a private company to do so. The fact that Toan is not present denotes arrangement for him was inadequate and it leads to bad practice. Mr Toan should attend Court independently and arranged by rightful authority.
9.	I noted there is collaboration between the Crown and the Fishing Company in terms of logistic difficulties as location, where about is Mr Toan in Vietnam. As former employer information about Toan should be on file.
10.	On the whole the application meets the requirements under S.118 (1) of the Evidence Act. On the face of it the statement is reliable. It was taken under required standard adopted by Police investigations. The witness is an important one. However since the witness has returned to Vietnam, to call him will cause undue delay to this case.
11.	The defence Counsel though opposes to the application provides no alternative but rebut by way of scrutinising the work of the Crown and Police which could have done better rather than relying on someone else to bring witness to attend trial.
12.	Whilst I noted the points raise by the defence there is nothing more that I could exercise my discretion as option, rather to grant the application.
	Order:
	1.	Application is granted and the statement of Nguyen Van Toan be admitted as evidence in this trial.
	The Court.