SMM Solomon Ltd v Attorney General (Ruling on Application for leave to speak with witness under cross examination) [2013] SBHC 186; 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.

Rules – Legal Practitioners Act Cap 16 r.16[11] – leave to approach witness whose cross-examination not complete but who has been excused from attendance for a period –reasons for leave related to publication of a report of the proceedings in the newspaper – suggestion of unfair attack on reputation – claim of right to know and respond in the witness.

RULING ON APPLICATION FOR LEAVE TO SPEAK WITH WITNESS WHO IS UNDER CROSS-EXAMINATION

Commissioner

1. I propose to give a short ruling in relation to Mr Sullivan's application in terms of Rule 16 (11) of the Legal Practitioner's Act, chapter 16.
   
2. As a consequence of a published report in the Solomon Star on Saturday, the 30th of November, Mr Sullivan QC says that he needs to communicate with Mr Ichiro Abe, a witness of the first claimant, a witness whose cross-examination has been interrupted and who is overseas.
   
3. The newspaper article spoke of Mr Abe as the former Director of Sumitomo in Solomon Islands, and recounted detail of the cross-examination where issues of bribery and improper conduct of particular parties were raised.
   
4. Mr Sullivan says that it is not a fair or accurate report, and consequently, it gives rise to an attack on the reputation of Mr Abe and others. He should be able to communicate with Mr Abe about the matters raised in the report, for he has a right to know and respond if appropriate.
   
5. Rule 16 (11) says, "A legal practitioner shall not communicate with a witness under cross-examination without the leave of the Court."
   
6. Mr Lilly QC seeks my ruling instanter to dismiss the application. He says, in effect, that for good reason, it does not have merit on its face and should be dismissed without delay.
   
7. His argument includes reference to peripheral issues going to what he says is Mr Sullivan's misapprehension of the various principles relating to the examination and cross-examination of witnesses. This misapprehension, he say, appears from a reading of an exchange of letters between Sol-Law and Norton Rose Fulbright, the lawyers for the respective first claimant and sixth defendant.
   
8. Be that as it may, Mr Lilley pointed to three principles which precluded contact with Mr Abe in any event, and with two other witnesses yet to be called by the first claimant, Mr Kudo and Mr Ochi, for Mr Sullivan expressly alluded to his intention to discuss matters in the transcript arising out of the cross-examination of Mr Abe.
   
9. Those three principles are set out in the decisions of R v Momodou. [2005] EWCA Crim 177; [2005] 2 All ER 571; The Court of Appeal decision in HKSAR v Tse Tat Fong [2010] HCCA 156 and Re Equiticorp Finance Limited; Ex parte Brock [2] [1992] 27 NSWLR 391. At the risk of choosing the wrong passages, the principles may be summarised in the order of the decisions;
   
   1. The witness should give his or her evidence so far as practicable, uninfluenced by what anyone else has said, whether in formal discussions or in formal conversations;
      
   2. We do not encourage witnesses to discuss their evidence with others who are potential witnesses;
      
   3. Any procedure which tends to subvert a witness real recollection of events and replace it with evidence based on a different source, whether it be what another person says, or perhaps what document describes, what a document describes is wholly wrong.
      
10. Mr Lilley, while accepting the deficiencies that were manifest in Mr Tukumana's evidence might be remedied, said it is doubtful that deficiencies which arise from the proposed contact can be similarly repaired.
    
11. The schedule drawn up by Mr Sullivan touched on eight quotes from the newspaper article. Very many passages of cross-examination taken from the transcript were included to show the breadth of the evidence treated by the quotations. I do not need to assess whether these passages offend for this trial is concerned with evidence before it. The passages may, at another time and place be subject, if necessary, to judicial consideration.
    
12. By contacting Mr Abe about these quotations and the accompanying transcription, the third principle can plainly be seen to be breached, for conversations at this stage of his cross-examination must surely colour his recollection of what has gone before and what will follow when he is recalled for further examination.
13. The approach may also be said to be in breach of 1., for wide ranging discussions about the matters in the schedule with Mr Abe, will be on matters the subject of his yet to be continued cross-examination, and the very risk of influence, intended or unintended, would be apparent to a reasonable observer.
    
14. Any claim to a separate remedy against the newspaper arising out of the publishing, cannot in any way affect the principles set out above since in this trial the fundamental fairness to be observed annunciated to an extent by those principles as it affects this argument, is between the parties to these proceedings. That entitlement of fairness cannot be overborne by a suggestion of a separate right to redress of a particular party against an outsider, as enlivening leave. Mr Abe's, for instance, private rights are unaffected.
    
15. For these reasons, leave is refused, the application is dismissed.
    

The Court