SMM Solomon Ltd v Attorney General (Application to use document in re-examination) [2013] SBHC 185; HCSI-CC 258 of 2011 (2 December 2013)

HIGH COURT OF SOLOMON ISLANDS
(Brown J)

Civil Case No. 258 of 2011

SMM SOLOMON LIMITED AND ALFRED JOLO (Representing the trustees and members of the Anika Thai Clan) AND WILLIE DENIMANA AND HUGO BUGORO (representing the trustees and members of the Thavia clan) AND HENRY VASULA RAOGA (representing the trustees and members of the Vihuvanagi tribe) AND BEN SALUSU (representing the trustees and members of the Vihuvunagi tribe in respect of the Chogea and Beajong land areas within Takata) AND MAFA PAGU (representing the trustees and members of the Thogokama tribe) AND PAUL FOTAMANA (representing the trustees and members of the Veronica Lona Clan)

–V-

THE ATTORNEY GENERAL (representing The Minerals Board AND THE ATTORNEY GENERAL (representing the Minister for Mines, Energy and Rural Electrification AND THE COMMISSIONER OF LANDS AND THE REGISTRAR OF TITLES AND PACIFIC INVESTMENT AND DEVELOPMENT LIMITED AND AXIOM KB LIMITED AND ROBERT MALO, FRANCIS SELO, LEONARD BAVA, REV. WILSON MAPURU AND ELLIOT CORTEZ AND THE ATTORNEY GENERAL AND BY ORIGINAL ACTION AND BUGOTU MINERALS LIMITED AND THE ATTORNEY GENERAL (representing the Director of Mines) AND THE ATTORNEY GENERAL

Date of Hearing: 28, 29 November 2013

Date of Ruling: 2 December 2013

1st - 7th Claimant – Mr J Sullivan QC

- Mr R Kingmele

1st – 4th & 8th Defendant – Mr S. Banuve
-The Solicitor General

5th Defendant – No Appearance

6th Defendant – Mr R. Lilley QC

- Mr J. Carter
- Mr D. Keane
- Mr M. Pitakaka

7th Defendant – Mr F. Waleilia

- Mr D. Nimepo

For the Cross Claimants, Bugotu Minerals Ltd – Mr T. Matthews
- Mr W. Togamae

CATCHWORDS.

Evidence – re-examination –witness statements the subject of attack in cross-examination – unintelligible responses in relation to his own statement – right in an examiner to put document to witness in endeavour to resolve earlier response –nature of the document to be put.

Practice and procedure – extent to which a re-examiner may examine a witness following cross-examination – difficulties in language interpretation – principle underlying re-examination does not afford a right in a re-examiner to introduce fresh evidence by way of re-examination.

RULING ON APPLICATION TO USE A DOCUMENT IN RE-EXAMINATION

Brown, J sitting as the Commissioner:

Before commencing his re-examination of Mr Tukumana in relation to Mr Lilley QC's cross-examination of topics on day 17, topics going to Mr. Tukumana's understanding of particular English phrases used in his statements already in evidence, Mr Sullivan QC sought leave to use a schedule which he proposed to put to the witness. Mr Lilley objected to that process for, he says, it will, in effect, introduce new evidence of what the witness has said. I use the word "leave" advisedly as my later reasons will make plain.

Mr Tukumana's statements were many, for some had been prepared for associated proceedings, although all were read in these proceedings before me. He is an educated gentleman of Huali village, Guowei district, Isabel Province. He is aged 65, a member of the Thavia clan of Thogokama tribe and was called by Mr Sullivan who represents the first claimant, SMM Solomon Limited and those other claimants, those claiming representative status of the various tribes and clans. He has had responsible positions in Honiara over very many years in paid employment where he was responsible, for instance, for the maintenance and collation of business documentation and, to an extent, managed financial affairs of an organisation. He said he speaks Holo language, Pidjin and English. His preference is to speak Holo.

He has been concerned with matters pertaining to the Silas Tango family group. He says, for instance, that he is knowledgeable of Thavia's genealogy, history, boundaries and transactions about Piregha to Kolosori land. He says that in 1992, an acquisition process was held in respect of Kolosori land. The acquisition process covered, amongst others, customary land from Piregha to Kolosori owned by the Thavia clan.

In the course of Mr Lilley's cross-examination of Mr Tukumana on day 17 of the trial, the witness and interpreter of Cheke Holo, Mrs Palmer, were asked to leave the Court when the following relevant parts of the exchange took place, and I refer to day 17, session 1, pages 9 and 10.

Mr Sullivan: Well, it's page 25. Mr Lilley asked, "Do you know what land acquisition means?" The question was put – and this is just to show the problem which I think Mrs Palmer needs to be reminded of. The question was put in Holo, "Do you know what" – and then the word, "land acquisition" – was used without a translation – "means?" So you got back the answer, "I don't know the meaning of land acquisition because it's a white-man's language," because the words that were put was a white-man's language. So I'm just concerned that Mr Lilley, quite rightly at the beginning, indicated that if Mr Lilley, quite rightly at the beginning, indicated [sic] that if there was a difficulty in interpretation of particular words, then Mrs Palmer ought to let us know. That's the point I'm making, your Lordship.

Mr Lilley: Your Lordship, in Mr Tukumana's affidavit he swears – in his sworn statements he swears that he speaks Holo, English and Pijin. He prefers to speak Holo.

Mr Sullivan: That's in varying degrees.

Mr Lilley: So the problem is not for me, the problem is one where if words that have never been translated into Holo are included in Mr Tukumana's sworn statement, that raises questions of great concern to me and I suspect to your Lordship.

Mr Sullivan: And I'll repeat what I said yesterday, we'll put the interpreters on oath, your Lordship, it's as simple as that.

Commissioner: Mmm. I'll give you leave to re-examine on that point, Mr Sullivan.

The witness, Mr Tukumana, was recalled and the re-examination continued. The first question put was, "Have you ever heard the word "environmental impact statement?" There was much toing and froing between the interpreter, Mr Lilley and me whilst we sought to fairly put the question until after a document had been shown to the witness, this exchange occurred, and I refer to day 17, session 1, pages 12 and 13.

Mr Tukumana, you've only looked at about the first four pages, but I'll ask these questions –

You don't understand the English in that document, do you?

Yes, some of it, yes, I know if I read them three times, once more I would know, understand.

At the present you do not understand the English in that document, do you, Mr Tukumana? Yes, yes, I just look, I don't understand.

Commissioner: Do you appreciate the answer, Mr Lilley?

Mr Lilley: I think he said, "Yes, I don't understand."

Commissioner: Yes. You got that answer previously. The "yes" was, "Yes, I agree with you." It's that negative.

Commissioner: The "yes" preceded. The "yes" was in answer to your question which was the negative and he said "yes".

Mr Lilley: Yes, Your Lordship. Mr Tukumana, has that document ever been translated to you by someone in Holo?

Interpreter – That's what I said earlier. Someone from Hograno came in and translated this to one of the many things.

Later, these questions were asked, and again, day 17, session 1, pages 14 and 15.

Mr Lilley: Thank you, your Lordship. Mr Tukumana, what does the term "acquisition proceeding" mean? Is it possible to change that into Holo?

Commissioner: Give the answer please, Mrs Palmer.

Mrs Palmer: There is not direct translation for that word "acquisition" proceeding".

Commissioner: But Mr Tukumana responded. You put the English to you.

Ms Palmer: Yes.

Commissioner: What did he say?

Ms Palmer: I didn't listen to him.

Commissioner: Sorry, Mr Tukumana, just answer the question again? –

What does "acquisition proceeding" mean? What does "acquisition proceeding because it's in English so I don't know what the meaning of it is.

Mr Lilley: Mr Tukumana, what does the word "vesting order" mean?

Mrs Palmer: Can you repeat the word again?

MR LILLEY: The words are "vesting order." What do the words "vesting order" mean?-- [INTERPRETER]-- That I don't know.

Mr Tukumana, what does the word "accordingly" mean?--[INTERPRETER]-- That I don't, in - in Cheke Holo, I don't know.

Mr Tukumana, what does the term "acquisition process" mean?-- [INTERPRETER]--That I don't know.

What does the term - sorry, I'll start again - what do you mean when you say "rectification of the perpetual estate"?

COMMISSIONER: Did you hear the question, Mrs Palmer?

MS PALMER: Yes, what do you mean by "rectification of perpetual estate" mean?-- [INTERPRETER]--That I don't know.

MR LILLEY: What does the term "acquisition hearing" mean?-- [INTERPRETER]--That I don't know, I swear.

What do you understand by the term "option deed"?

MS PALMER: My Lord, can I have it repeated, please?

COMMISSIONER: What do you understand by the term "option deed"?-- [INTERPRETER]-- That I did not know what that meant but when Arun Manet explained to me, then I understood that.

When who?

MS PALMER: When Arun Manet.

COMMISSIONER: "When Arun Manet explained to me, I understood that."

Now, throughout Mr Tukumana's statements, these English words and phrases have been used. Mr Lilley, while denying the right and, in answer to Mr Sullivan's wish to use the schedule, said, "It seems very clear from what my learned friend has said from the Bar table that words like 'acquisition' and 'registration' were never used by the witness and the translation or interpretation which is certified on the document simply can't be right because the words that were used instead, it appears, words like 'acquisition' and 'registration' don't appear on - in the affidavit." For Mr Sullivan had, in support of his argument to use the schedule, said that Mr Tukumana (referring to his statements) understood what was said to him in Holo.

Mr Sullivan further said that the interpreter of the statements of Mr Tukumana into English, Mr Mane, a lawyer and officer of the Court, was impliedly impugned for he had sworn an oath in respect of each statement to the effect that the sworn statement was interpreted to the deponent, Mr Tukumana, in Pidjin and language, the deponent seemed to understand the sworn statement and the deponent signed the sworn statement in his presence. Yet when Mr Tukumana was asked in language to explain his understanding of these phrases, his answers, at face value, were plain. Those phrases were foreign to him, yet later he did say, in relation to the option deed, that he understood when Aaron Mane explained to him (I should say that in some statements, Lionel Puimana was the Commissioner of Oaths and interpreter of the sworn statement).

It must be remembered that these statements originate from the witness. As the concluding words say, "All the facts and circumstances above deposed to are within my own knowledge save that such as are deposed to from information only and my means of knowledge and source of information appear on the face of this statement." Now, statements do not emanate from thin air. The purpose of the statement relates to the material relevant to the proceedings, material known to the witness. He may be cogently led through the events chronologically for instance, but it is the witness whose statement is recorded and that presumes knowledge in the witness of all those matters to which he deposes, for that is what he says in conclusion. We are not left hanging in the air as Mr Sullivan would have us, unless we again ask if he understood his statement. He said so at the time of making it; he knew what he was talking about.

What Mr Lilley says is that the tendered statements are not understood by this witness. They are unintelligible to the witness as evidenced by the cross-examination responses. Now, the statements are in evidence, yet in that form, Mr Lilley cannot test their truthfulness or usefulness, for this witness now, for whatever reason, retreats behind the foreign façade of these words and phrases.

In the adversarial system a cross-examiner, as Mr Lilley says, is entitled to be informed of the level of knowledge of the witness, the concepts that the witness understood and must be able to develop an informed approach to cross-examination.

He needs to be able to test, not only the credibility for instance, whether the witness appears to be telling the truth, as he now believes it, but whether this witness, when dealing with these English words and phrases, appreciated their meaning sufficiently to justify this Court's regard to his evidence on the point. That issue does not go to a matter of interpretation, but to understanding, and if the original evidence is in such form that testing that understanding is not feasible then how, in all fairness, may the evidence be tested?

Queen Caroline's case allows a right in re-examination to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness in cross-examination if they be in themselves doubtful and also of the motive by which the witness was induced to use the expressions but there is no right to go further and introduce matters new in itself and not suited to the purpose of explaining either the expressions or the motive of the witness. Questions falling outside these limitations require the leave of the Judge.

Mr Sullivan seeks leave, as I understand it, since the nature of the answers of the witness to Mr Lilley's questioning about the particular words and phrases, not restricted to those quoted above, does not enliven a right to re-examine in terms of Queen's case. As Mr Lilley said the tendered statements are completely unintelligible to the witness insofar as use of these words and phrases are concerned. Now, I make no finding on that since Mr Tukumana's responses may have sprung from any number of causes known only to him, but clearly they leave no room for re-examination in the accepted sense.

Should I exercise a discretion? The schedule which was marked for identification on the second day of argument "M" was initially taken by me over objection so that I might better understand Mr Sullivan's argument. He explained the purpose of the schedule thus, "What I propose to do now is to give the interpreters a schedule which has the term and the Holo explanation that we are instructed was given at the time. We will also give to our friends and your Lordship that schedule with an additional column in English to show what we say is the breakdown of the concepts in English that in totality are the explanation for the relevant term. I propose to ask the witnesses to read the Holo to the witness and then ask the witness if he recalls receiving an explanation of that kind. If he doesn't recall then it will be necessary to put the interpreter on oath but our instructions are, from the interpreter that that's what was said to the witness."

When I read the schedule, [which is four pages], it clearly is not an attempt at Cheke Holo interpretation of the phraseology, it is plainly a re-statement of evidence. For instance, most obviously in schedule 6 named, "Rectification of the perpetual estate" the second column is Cheke Holo while the third column says, "To take away the names of Bava, Mapuru, Selo, Cortez and Malo from your land which had already been written down in the book of the government. Their names will be on the land register forever and ever until they die. It must be returned because of mistake/wrong and that they have done it in secret."

Now, this is not interpretation, it is not an attempt at putting the concept of rectification into language but a statement of facts directly relating to the claimant's case. In his statement of 30 August 2013 at paragraph 15 Mr Tukumana touched on the land registration. He said, "Martin Tango told us that he did not know anything about the registration of our land and he appealed to us to cooperate with him to fight back for our stolen land."

In his earlier statement of 10 February 2013 in paragraphs 7 to 9 he touches on that meeting and in paragraph 9 says, "The clan representatives in attendances including Martin Tango all resolved at that meeting that Thavia clan join SMM Solomon Limited to challenge the registration of the land in favour of Leonard Bava and the others as well as to challenge the lease to Axiom."

To now put this schedule prepared by Mr Sullivan's team is tantamount to putting words into Mr Tukumana's word. It is not his story. The schedule could not be said to be explanatory but introduces fresh statements of a factual nature and they go well beyond the material in his statements as I have shown. The schedule has been prepared in the absence of instructions. Putting it to the witness now may be seen as an invitation to adopt it as factual truth.

On the other hand no manner or extent of inquiry now of the original interpreters can hope to illuminate the understanding or intention of the witness then. The schedule is inappropriate, the four pages suffer the same criticism; it cannot be used.

Late in the day on Thursday Mr Sullivan sent by e-mail submissions on two cases relied upon by Mr Lilley in earlier argument. This approach was in contravention of my comments and clear reservation on the application which had implicit the refusal to hear further argument without leave. Nevertheless when the e-mail opened its contents were obvious and closing one's eyes cannot obliterate the image on the brain. Mr Lilley addressed me on the Friday morning about that and I propose to deal separately with his serious assertions.

Before dealing with the cases Mr Lilley said that he and his team had been ambushed yesterday, Thursday, for Mr Sullivan realised two weeks ago that there were problems arising from Mr Tukumana's formal statements [and those numerous others to be read in the claimant's case], after hearing him in cross-examination.

Mr Sullivan must also have realised this approach [by use of the suggested schedule which would have taken thought and time to prepare, while having asked for the witness to leave the room], would go beyond the normal rules relating to re-examination. Hence my comments earlier about leave.

So really Mr Lilley and his team had to some extent foreseen Mr Sul's difficulty and were, ere, to this extent, prepared to argue the refusal to use the schedule in this fashion and to say that Mr Tukumana cannot now be furtherxamined, even without the schedule, and should not be recalrecalled.

Mr Lilley relied on paragraph 29 of Justice Goldsborough's decision, as analogist to that of Mr Tukumana's situation. For Mr Tukumana, Mr Lilley says, gave a story which has not been recorded. In Fono v Fiulaua [2011] SBHC 6, at paragraph 29, "Two witnesses said in their statements that they were to be given money to buy rice," and yet in evidence, their story was that they were to be given rice from the Rarasu Motel. It's clear that their real story had not been recorded correctly in their statements, and that their true story was not contained in those statements."

This certainly focuses my attention on whether Mr Tukumana's true story is recounted in his statements, but on a reading of the cross-examination, taking account of the difficulties faced by our inexperienced interpreter, it would be conjecture on my part where I to find that those parts of Mr Tukumana's statements were not true, because of his responses in cross-examination.

The form of his statements as practice has shown, does not permit counsel to fairly cross-examine as is their right. That leaves the Court in a quandary; how to treat those parts of his statement which do not lend themselves to testing for whatever reason.

The second case, Aon Risk Services Australia Limited v ANU [2009] 239 CLR 175, is of relevance, as Mr Lilley says, for under the particular Australian and Solomon Islands Rules, which are similarly expressed, [see our Rules 1.3, 1.4.] the same objects are shared.

At [98] of that judgment, "Of course, a just resolution of proceedings remains the paramount purpose of Rule 21, but what is a just resolution, is to be understood in light of the purposes and objectives stated.

Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading when delay and costs are taken into account.

The rules reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation, and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings on payment of costs.

If I were to allow the use of the schedule, a fresh statement of facts, which would need time to digest, irrespective of its usefulness, the trial would inevitably be delayed.

I adopt the principles expressed by the High Court of Australia at [98], as they reflect a just appreciation of our case management rules. Whatever its purpose, the schedule introduces new material into a trial which has already been troubled by late receipt.

I disagree with Mr Sullivan where he says neither case is on point.

The schedule is clearly evidentiary. As I have said, the witness' evidence in chief was principally set out in his statements. If the formal manner in which those statements was prepared, should now be shown to be defective in some way, I must ask whether it would be so unfair to the claimants to not allow this fresh evidence in the face of the imperative principles in rules 1.3, 1.4.

I'm not so satisfied; leave is refused for use of the schedule as proposed. I also refuse Mr Sullivan any right to further re-examine on these points.

Much time and resources have been expended in these proceedings.
Mr Lilley, in recognition of this, has proposed a way through what may have become a morass if the claimant's other witnesses reflected the difficulties the Court faced with the cross-examination of Mr Tukumana. He said, "The rest of the trial can be fixed,". He went on to explain how he saw it happening. In other words, answering that question I previously posed.

In the circumstances, I can only suggest that Mr Sullivan take a step back, and with Mr Lilley's concession, advise in due course how he will seek to proceed with these witnesses. I will not permit Mr Sullivan to recall Mr Tukumana.

This trial is far too important to stumble now.

For the reasons I've given, a just resolution of the proceedings does not now include a claim of right to reframe the claimant's case, for that would be the effect of permitting the use of the schedule. I propose to ask counsel to address on the question of costs afterwards.

THE COURT