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Regina v Sulumae [2012] SBHC 18; HCSI-CRC 291 of 2009 (30 January 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

V

SAVERIO SULUMAE

Date of hearing: 25th January 2012.
Date of Judgment: 30th January 2012

Mr. Iomea for the Crown.
Mr. Fugui and Ms Waqavonovono for the Accused.

RULING ON APPLICATION FOR A VOIR DIRE

Apaniai, PJ:

Introduction:

1. The accused, Saverio Sulumae, is charged with the murder of Ruben Kimo ("deceased") at the Central Market in Honiara on the 11th October 2008.
   
2. The case was listed for trial commencing at 9.30am on 23rd January 2012. However, when the case came on for trial that morning, counsel for the Crown sought an adjournment on the ground that he had just taken charge of the case file and needed time to prepare. He also intimated that the defence had indicated that they would be applying for a voir dire to be held in regards to the admissibility of the evidence relating to the photo board identification of the accused as the person who murdered the deceased. The defence has confirmed that they intend to make an application for a voir dire as hinted by the Crown. I then adjourned the case to 9.30am on 25th January 2012 for the voir dire.
   
3. When the court resumed at 9.30am on 25th January 2012, I posed the question to counsel as to whether it is appropriate to hold a voir dire to determine the admissibility of photo board identification evidence or whether the case should proceed to the trial proper and allow the defence to address me at the close of the evidence for the prosecution case, or at the close of the evidence in the case, on the issue of identification should they think that the Crown's evidence connecting the accused to the crime has not met the required standard of proof.
   
4. The defence stated that they intend to pursue the application for a voir dire whereas the Crown's position is that the identification issue should be left for the trial proper and that a voir dire is not necessary.
   
5. As this is an important issue, I issued directions, with the consent of both counsel, that counsel file written submissions by 12noon on 26th January 2012 on the issue whether or not a voir dire should be held, separate from the trial proper, to determine the issue of the admissibility of photo board identification evidence as suggested by the defence. That has been done.
   

Accused's position:

6. It is submitted on behalf of the accused that the application for a voir dire is to determine the admissibility of the use of a photo board by the police by which certain witnesses have identified the accused as the person who murdered the deceased at the Central Market on the 11th October 2008. Counsel for the accused submits that, because the photo board identification had not been properly done, the prejudicial effect of such photo board identification evidence, if admitted, would outweigh the its probative value. As such, counsel submits that the evidence should not be admitted. Counsel says that the application is based on section 181(1)(a) of the Evidence Act 2009 ("Evidence Act") which allows preliminary hearings to be conducted to determine whether evidence should be admitted, whether evidence can be used against a person, and, whether a witness is competent or compellable. For reasons which will become clear in the later part of this ruling, it seems to me that section 181 is not relevant to the issue in the present application.
   
7. Sections 136 and 138 of the Evidence Act have also been referred to in support of the accused's position. Section 136 gives the court discretion to refuse to admit evidence where the probative value of the evidence is substantially outweighed by the prejudicial effect of the evidence or where the evidence is misleading or will cause confusion or where the admission of the evidence will cause delays. Section 138 obliges the court to reject evidence adduced by the prosecution if its probative value is outweighed by its prejudicial effect. Again, in my view, these provisions are not relevant to the issue at hand.
   
8. Counsel has also referred to 2 Australian authorities, namely, Festa v The Queen[1] ("Festa") and Alexander v R[2] ("Alexander") in support of the accused's position. Reference was also made to a local decision of this court in R v Saki & Others[3] ("Saki").
   
9. I have read these authorities. In my view, Festa and Alexander did not deal with the issue in this application, which is, whether or not it is appropriate to hold a voir dire to determine the admissibility of the identification evidence obtained by means of the photo board. The decisions in those 2 cases dealt with the substantive issues of whether the accuseds were correctly identified as the persons who committed the offences. Saki, on the other hand, was a case where a voir dire was held to determine the admissibility of a photo board identification evidence. At the end of the voir dire, the identification evidence was ruled inadmissible. Unfortunately, there is nothing in the Saki ruling to indicate that the question as to whether or not a voir dire was necessary was raised at that hearing. It appears that the court had readily assumed that a voir dire was necessary and proceeded immediately with the hearing of the application without considering that question.
   

Crown's position:

10. The Crown's position in regards to the issue at hand is that a voir dire is not necessary. Reference was made to the 2 English cases of R v Beveridge[4] ("Beveridge") and R v Flemming[5] ("Flemming") in support of the Crown's position. In those 2 cases, the Court of Appeal held that a voir dire (or trial-within-a-trial) was not necessary in determining the admissibility of identification evidence.
    

The Evidence Act:

11. The starting point in relation to identification evidence is the Evidence Act. Section 81(1)(b) allows identification of a person suspected of having committed an offence by the use of photo boards. The photo board must have at least 12 photos of people of similar appearances, of whom one must be the suspect. Section 82 lays down the procedure to be followed when conducting identifications in general. Section 84 requires police officers conducting photo board identifications to ensure that nothing is marked on the photos, or on the backing board on which the photos are mounted that will direct the attention of witnesses to a particular photo. Section 85 lays down the specific procedure to be followed when conducting photo board identifications. The Act says nothing about the stage in the criminal investigations during which the photo board identification should be held or in what circumstances it should or should not be held. Should it be held before arrest or after arrest or before trial? These are matters which are left for the investigating police officers to decide when conducting criminal investigations bearing in mind, of course, that the manner in which they conduct the identification of suspects may affect the quality of the identification which, in turn, will affect the weight to be given to the identification evidence.
    
12. Since the Evidence Act allows identification by photo boards, it would be inconsistent with the purport of the Act to allege that evidence relating to identification of a suspect through the use of photo boards is inadmissible. In my view, irregularities which occur during the identification process do not render the identification evidence inadmissible. Such irregularities only go to the quality of the identification evidence which will, in turn, affect the weight to be given to the evidence. A voir dire is not necessary to determine the quality of the identification evidence or the weight to be given to such evidence. These are matters to be dealt with either at the close of the prosecution evidence or at the close of all the evidence in the case.
    

English authorities:

13. This view is supported by a number of English authorities. In R v Walshe[6] ("Walshe"), 10 forged prescriptions in the name of "Boyle" prescribing certain quantities of drugs were presented at a shop called Franks Chemist in Stanmore between November 1977 and March 1978. There was no dispute that the prescriptions were forged. There was also no dispute that drugs were obtained by reason of the forged prescriptions. The issue here was one of identity of the offender, that is, the person who presented the prescriptions and obtained the drugs. The prosecution said it was the accused who was the person. The accused denied that he was the person. An identification parade was held and the accused was identified by the shop owner and his daughter as the person. At the trial of the accused, both witnesses confirmed their identification of the accused. However, the accused maintained his position that the identification of him at the identification parade was wrong and that he had an alibi to put forward in support of the alibi. As a result, before the Crown opened its case, an application was made for a voir dire to be held to determine the admissibility of the identity parade and the identifications made on it. After the voir dire, the identity evidence was admitted and the accused was subsequently convicted. On appeal, the Court of Appeal, commenting on the application for a voir dire, said (at p. 87):
    

"In our judgment, that is not a procedure which a judge at a trial ought to adopt. It is, so far as this court is concerned, a novel procedure, and it is not to be encouraged. Indeed, it is to be discouraged. The reason is this: It seems that before the learned recorder, as in this court, those representing the applicant drew some close analogy between the admissibility of evidence of an identification parade and the admission of a voluntary statement. But those are very different matters. As soon as a statement is challenged, the law places on the Crown the burden of showing that it is admissible by proving that it was voluntarily made. That is a separate and different matter. Here there is no burden on the Crown to prove the admissibility of the evidence relating to the identification parade and what flowed from it. It is clearly admissible evidence and should have been admitted. Its quality is, of course, another matter, to be considered by the jury. This court holds strongly to the view that a trial-within-a-trial is an entirely inappropriate procedure in the circumstances which obtained in this case."

14. That principle was followed in Beveridge and Flemming. In Beveridge, applicant was charged with 2 counts. The 1st count was that at about 2.30pm on 4 November 1985, 2 youths robbed a branch of the Alliance & Leicester Building Society in Middlewich and stole $425. A lady called Helen Carter was the cashier at the branch at that time. She did not see the youth (who is alleged to be the applicant) ("1st youth") enter the building because she was attending another customer. When she finished with the customer, the 1st youth spoke to her and told her that he wished to invest $1,000. She got a leaflet and gave it to him. She then went along the counter for a second leaflet. As she did, she noticed the 2nd youth coming in. She returned to the 1st youth and was explaining the leaflet to him when the 2nd youth vaulted the counter and pushed her away. She ran to the back of the office and alerted the other staff members. She then ran to another building nearby and rang the police. She then saw their accountant, Mr. Carr, chasing after the youths to a blue car which was parked nearby. She attended an identification parade on 27 November 1985 (some 13 days later) and there she positively identified the applicant as the 1st youth. Mr. Carr chased the youths to the blue car which he described as a blue saab the vintage of which he described as either "P" or "R" registration. There was also evidence that the applicant had bought a blue saab motor car with a "P" registration 5 days before the incident. The applicant was charged with robbery and was convicted and sentenced to 7 years imprisonment.
    
15. The 2nd count concerned an incident which happened on 25 November 1985. At about 4.30pm that day, 4 men went to the office of a private law firm and, while one remain outside the gate, 3 went into the office. The 1st man (who is alleged to be the applicant) vaulted across the counter and asked the cashier, Ms Fitzpatrick, for money. She told them there was no money thereby leading to the 1st man assaulting her. She shouted out loudly. The 2nd man then pulled out the bunch of keys from her and opened the draw. There was no money. They then pulled out the telephone wire and ran out of the building. At an identification parade held on 27 November 1985 (2 days after the incident), Ms Fitzpatrick positively identified the applicant as the 1st man. The applicant was charged with assault with intent to rob.
    
16. At trial, the applicant gave evidence which raised alibi. The applicant was convicted and sentenced to 7 years imprisonment. He appealed against the conviction claiming, amongst other things, that the trial judge erred in refusing to conduct a "trial within a trial" in regards to the identification parade. He argued that the decision in Walshe was no longer good authority in the light of s. 78(1) of the Police & Criminal Evidence Act (which allows the court to reject evidence tendered by the prosecution where the admission of such evidence would have adverse effect on the fairness of the proceedings). The court held that there may be occasions when a "trial within a trial" may be desirable to determine what course the court should take but that such occasions would be rare.
    
17. In Flemming, several men burst into a house, where a party was being held, shortly after midnight on 25 August 1984. They entered by knocking down a door with an axe. They then ordered the people in the house to line up against the wall and to hand up their cash and jewellery. One of the occupants of the house picked up a swordstick and chased them out and pursued them to their car (a Maestro car) and broke the windscreen of the car. The men drove off in the car but then stopped and the occupants dispersed. One of those people in the house was a Mr. Kevin Hardy. He escaped from the party through a window and went to his car which was wedged in a position which prevented him from driving away. He saw what happened to the Maestro car and 2 of the occupants came past his car. One of the men was carrying an axe. They came to Mr. Hardy and ordered him out of his car. Mr. Hardy refused whereupon the man carrying the axe smashed the driver's door with the axe. By then the police had arrived. The appellant was then charged with 4 counts of robbery and 2 counts of malicious damage. He was convicted of all 6 counts and sentenced to 4 years imprisonment. He appealed against the conviction.
    
18. One of the issues raised on the appeal was the appropriateness of holding "trials within trials" in the circumstances of the cases. The appellant contended that the evidence of identification was inadmissible because of the limited opportunity which Mr. Hardy had to observe the attacker when in his car and the fact that the identification of the appellant at the police station was carried out in circumstances which contravened the Home Office Circular No. 109 of 1978. It was argued that as such the probative value of the identification evidence was minimal compared to its prejudicial effect so that it would be unfair for the evidence to be admitted.
    
19. In its judgment, the court said in relation to the question of trial-within-a-trial (at p. 36):
    

"The argument in support of "trial within a trial" is based on an analogy with the situation where there is an issue as to whether or not a confession is voluntary. However, in that situation, the judge has a special role to play. The duty is placed squarely and fairly upon him to decide, as a matter of fact, whether the confession is voluntary. Unless he is sure that the confession is voluntary, the confession is inadmissible and cannot be allowed into evidence. In situations where there is no issue as to the voluntariness of a confession, the judge has no duty to find the facts. ... So far as the admissibility of identification evidence is concerned, the judge was being asked to determine the facts so that he could assess more accurately the quality of the identification evidence and the extent to which the Home Office Circular had been contravened so that he could assess the probative value of that evidence and whether it was desirable for it to be admitted before the jury. However, it is quite unnecessary to hold a "trial within a trial" for this purpose. The normal procedure in identification cases is clearly laid down in Turnbull[7] . In delivering the judgment of the court in that case Lord Widgery CJ made it abundantly clear that where the evidence of identification is such that it would be unsafe for a jury to rely upon it, the judge should intervene."

20. The court further referred to a statement by the Lord Chief Justice in the Turnbull case where he said (at p. 138):
    

"When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example, when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use the word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification."

21. The court then continued further by saying (at pp. 36 and 37):
    

"In the normal way the trial judge will make his assessment whether he needs to take the action referred to by the Lord Chief Justice either at the end of the case for the prosecution or after all the evidence in the case has been called. There may be exceptional cases where the position is so clear on the depositions that the judge can give a ruling at an earlier stage. However, the trial judge should not decide the matter by holding a preliminary trial, as in this case, before the evidence for the prosecution has been placed before the jury. It is of course true that the trial judge has a residual discretion to exclude evidence which is strictly admissible if he comes to the conclusion that its probative value is outweighed by its prejudicial effect so that its admission would be unfair to the defendant. However, this residual discretion cannot justify the holding of a "trial within a trial" as occurred here. Issues of this sort can be satisfactorily dealt with by the judge perusing the depositions, together with any facts which are common ground between the prosecution and the defense... What should not be allowed to happen is for a trial to be prolonged by evidence being called twice so as to enable the judge to make rulings."

Conclusion:

22. I am satisfied the authorities are not in favour of holding a voir dire in regards to determining the admissibility of identification evidence. All evidence tending to connect a suspect to the commission of an offence is admissible. Where irregularities are alleged to have been committed in relation to identification process, the proper procedure is not to hold a voir dire to determine the admissibility of the identification evidence but to address the court in regards to the improprieties of the identification process at the end of the case for the prosecution or after all the evidence in the case has been called.
    
23. For these reasons, the application for voir dire is rejected.
    

THE COURT

JAMES APANIAI
PUISNE JUDGE

^[1] [2001] HCA 72
^[2] [1981] HCA 17; (1981) 145 CLR 395.
^[3] Unreported judgment, CRC No. 414 of 2010.
^[4] (1987) 85 Cr. App. R 255
^[5] [1988] Cr. App. R. 32
^[6] [1982] 74 Cr. App. R 85
^[7] [1976] 3 WLR 445