Regina v Sing Loh Jing [2017] SBMC 31; Criminal Case 535 of 2016 (28 July 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 535 of 2016

REGINA
-V-
SING LOH JING, JOHN MAMIONG AND CHARLES TAKULE

Date of Hearing: July 20, 2017
Date of Decision: July 28, 2017

Mr. P. R. Abe for the prosecution
Mr. B. Kaehuna for the defendants

RULING ON APPLICATION UNDER SECTION 118 OF THE EVIDENCE ACT 2009

1. This is an application by the prosecution under section 118 of the Evidence Act 2009 to admit the statements of 5 witnesses who were not available for trial. Four of them were nationals of Papua New Guinea whilst the other, a local from Isabel Province. During the course of the submission, the prosecution however retracted and decided not to admit the statement of this local witness namely, Beero Tiroba, due to immunity reasons relating to his current employment. The prosecution is of the view that the circumstances regarding his unavailability is not covered under section 118 of the said Act and therefore, no legal basis to admit his statement.
   
2. Those four overseas witnesses were no longer in Solomon Islands. After they were interviewed by police in late July 2016, they already left the country and returned to their home in Bougainville. Since the trial date was set in October 2016, the prosecution through the Ministry of Foreign Affairs and External Trade had made arrangements with the Papua New Guinea government with the assistance of the Papua New Guinea High Commissioner’s Office in Honiara to locate and bring them for this trial. Despite the official request, there was no response from the other jurisdiction till date. Even efforts made by police officers at Kulitanai in Shortland Islands and Choiseul Province to try and locate those four witnesses around the Shortland Islands were also unsuccessful. These failed efforts and arrangements were explained in a sworn statement of Vincent Eria who is a police officer at Gizo and the sworn evidence of Elson Mason from the Ministry of Foreign Affairs and External Trade.
   
3. The defence objected to the application but provided no evidence in support. The defence argued that the witnesses were arrested following a raid at Metuai logging camp in Shortland Islands and were interviewed on the same or the following day. In that circumstances, their statements were not reliable and should not be accepted. For example, they were not cautioned before they were interviewed; the interviews were conducted on a patrol boat being an intimidating and uncomfortable environment and police offered no opportunity for them to write their own statements since they were nationals of another country and hence, they did not understand Solomon Islands pidgin. The fact that those police officers communicate to them in English whilst they responded in their own PNG pidgin is not reliable and possibly what they said may have not fully or properly recorded in their statements. Based on those grounds, the court should not admit their statements as sought for by the prosecution.
   
4. For this application, it appears to me the prosecution relies on section 118 (b)(i) of the Evidence Act^[1] as the principal ground warranting the admission of their statements. That is; the maker of the statements and that is, the four witnesses were no longer available for the trial and even if the court continues to adjourn the case, there is no guarantee that they will attend the trial even if arrangements are made.
   
5. On this ground of the unavailability of the witnesses, I do not think much can be said on this other than the reality that they are no longer available for this trial as we speak. The only issue is whether the circumstances relating to their statements provide reasonable assurance that their statements are reliable for the court to adopt.
   
6. I have perused their statements tendered during the trial and noted that their statements are normal witnesses’ statements given to police during the course of the investigation into this matter. Their statements contained their respective accounts of how and why they were brought over from Bougainville to the logging camp at Metuai 5 days before the interview. Each of them gave consistent accounts of the dates they were transported to the logging camp and the person responsible for their transport. Those statements were read over to them, accepted and signed.
   
7. The evidence given on oath by these police officers; Collin Suraru, Lawrence Sio and Alvin Wanenea were rather straight forward. They confirmed that the witnesses clearly understood and accepted their statements before they signed them. They were not intimidated or forced in any way when they were interviewed but what transpired was a willingly and voluntary giving of their statements to police.
   
8. It is under these circumstances that their statements were obtained and not as what suggested or put forward by the defence.
   
9. I find these aspects of the evidence offered by the police and as reflected in the witnesses’ statements are not contradicted and overwhelmingly entrenched. I do not have any evidence to show that they were accomplishes or co-accused to the three defendants so that the failure to caution them will render their statements unreliable. The suggestions made by the defence they were traumatised or shocked following the raid were not supported by any evidence which is an important aspect that should not be overlooked. The failure to offer any contrary evidence inevitably precludes this court to rely or believe such assertions. Even if I were to consider the circumstances surrounding the conduct of the police leading to the interviews, the evidence as it stands from the police officers clearly outweighs any contrary suggestions to that.
   
10. In my view, it is clear from the evidence that they were interviewed as normal witnesses and not as suspects or co-accused to the three defendants. Based on these reasons, I am satisfied that the circumstances relating to their statements provide reasonable assurance that their statements are reliable for the court to adopt.
    
11. On another matter which was not touched on by counsels is the lack of opportunity to cross examine the witnesses during the trial. A close reading of section 118 of the Evidence Act would suggest that this section has contemplated that aspect and therefore, no longer the need for cross examination. This position was explained in R v Samani^[2] or R v Suteski^[3] where the courts discussed the possibility of any prejudicial effect to the defendant’s case due to lack of the opportunity to cross examine the witnesses is no longer the decisive factor. Our legislature has promulgated in the Evidence Act that as long as the applicant satisfies the test in section 118 then a statement can be admitted even if the witness is not cross examined. That is the net effect of this provision.
    
12. From what had been submitted from both parties and more importantly, from the evidence placed before me, I am satisfied the statements of Lawrence Karimo, Joe Kukusi, Alex Mino and Mathew Moi be admitted as evidence in this trial.
    
13. Order accordingly.
    

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] 2009
^[2] HCSI CRC No 104 of 2011
^[3] [2002] NSWCCA 509