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R v Abba [2014] SBHC 72; HCSI-CRC 227 of 2013 (9 July 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

Criminal Case Number 227 of 2013

R

v

EMERALD FINIOREA ABBA

Coram: PALLARAS J
Crown: Ms. N. Kesaka
Defence: Mr. M. Holara
Hearing Dates: 30 June – 4 July, 2014
Verdict Delivered: 9 July, 2014

VERDICT

1. Emerald Finiorea Abba ("the accused") was charged that shortly before 1 a.m. on 17 February 2014, he did murder Bright Hansel Iro ("the deceased"). To this charge he pleaded not guilty.

2. By his plea he puts the Crown to proof on each of the elements of the offence charged. Upon the Crown therefore rests the burden of proving the charge against the accused. The accused bears no onus to prove his innocence nor indeed to prove anything else. The case must be proven by the Crown to the standard of beyond reasonable doubt. What that means is that if, at the end of the evidence, there remains a reasonable doubt as to the guilt of the accused, then he must be given the benefit of that doubt and be acquitted. It is only if and when I am satisfied beyond reasonable doubt of the guilt of the accused that he may be convicted.

3. In this matter the Crown case for murder consisted essentially of the evidence of one witness (PW1) who testified that he saw the accused strike the deceased over the head with a piece of timber. The Crown case is that this assault caused an injury to the deceased which caused his death.

4. The defence case is that the witness has mistakenly identified the accused as the attacker and, although the accused arrived on the scene soon after the assault, it was not he who struck the deceased but one or other of the several persons who was present at the time.

5. Before examining the Crown case I will first turn to the defence case. The accused elected not to give sworn evidence and not to give an unsworn statement. He called two witnesses, his wife and his son. His wife simply testified that she was in bed with her husband when they were woken up by her daughter raising the alarm that a fight was occurring within the compound where they lived. She testified that being frightened, she took her children and went to a nearby house. She was unable to testify as to any details of the fight nor the role that her husband may have later played in it.

6. The second defence witness was Arnold Abba, the 19 year old son of the accused. He testified that he was sitting in the compound drinking with several others when, without warning, the gate to the compound was broken down by the deceased who entered and proclaimed that he was Mike Tyson. The deceased then asked him for a cigarette and as he was reaching inside his bag for a cigarette, the deceased suddenly stabbed him on his right arm and then stabbed another person by the name of Eric who had been drinking with the witness. Then, according to this witness, the deceased stabbed another person by the name of Joshua. After stabbing the third person, the deceased was struck on the head with a piece of timber by a person named Ramokiu.

7. The witness was unable to give any explanation as to what led the deceased to stab him and three others. He said that after being hit by Ramokiu, the deceased wanted to escape but was hit by yet another person, Waneta. He said that Waneta, Ramokiu and Joshua were all armed with pieces of timber that had been on the ground within the compound.

8. The deceased struggled out of the gate and collapsed a short distance in front of the entrance to the compound. He said that it was then that the accused arrived and said "if you kill that man we would be in a lot of trouble".

9. Arnold Abba testified that there was some light coming from the security house which adjoined the area where they were drinking.

10. He testified that he was not present when the police arrived and that was why he did not tell the police what he had seen. Later when his father had been charged, he still did not tell the police what he knew because he believed that the police had already arrested someone else who had admitted the killing.

11. Arnold Abba was in my judgment a most unsatisfactory witness. He frequently refused to answer questions put to him by counsel and the Court and gave his evidence in a most contrived and inadequate fashion. I have no doubt whatsoever that he was not telling the truth in the majority of his testimony and I reject his testimony as being unreliable, lacking in credibility and honesty.

12. With the accused electing to remain silent, with his wife's testimony being of little assistance as to the details of the fight and with the rejection of Arnold Abba as a credible witness, I return to the principal question of whether the Crown has satisfied me beyond reasonable doubt of the guilt of the accused. It is to the strength of their case rather than any shortcomings that might be said to exist in the defence case that I now turn.

13. The first Crown witness and the only prosecution witness who was presented as an eye-witness to the assault was Chris Iro Basi (PW1). He testified that in the early hours of the 17 February 2013, he was asleep on the job in his role as a security officer when he was awoken by a telephone call from the deceased who was his cousin-brother. The deceased asked him to come to him and help him push his bicycle home as he was too drunk to make it on his own. PW1 obliged and left his job to meet the deceased.

14. When they met, PW1 began to push the bicycle and the two of them walked for about 20-25 minutes before several dogs began barking at them. The deceased called out to people nearby telling them to restrain the dogs or he would kill them. Two "boys" came out from the house and began to follow them and then started to throw rocks at them. The deceased began swearing at the two boys who continued to follow them. The deceased continued to swear at them until someone from inside the compound where the accused lived swore at the deceased.

15. In the view of PW1 the deceased was angered by the fact that he had been sworn at by someone inside the compound and so he walked towards the gate of the compound, pushed it down and went in. The deceased was then said to be explaining that he wasn't swearing at them but at others. Once inside the deceased told "the gang" not to come any closer to him.

16. While this was occurring, PW1 had not entered the compound but was waiting outside the gate holding the bicycle. The area was dark and, according to PW1 the only light was coming from a light pole some twenty meters away to his right outside the compound. This provided adequate lighting for the area at the front of the gate but the area inside and beyond the gate was dark.

17. PW1 testified that he could not recognise any of the other people inside the gate because it was too dark.[1] He said that the lighting was clear at the front of the gate[2] and that he could see clearly "but just to my side"[3]. The gang came to attack the deceased and a fight broke out inside the compound. The deceased had been inside the compound for about 7 minutes before he saw him being hit on the head with a length of timber by the accused. PW1 said that the fight lasted for approximately 15 to 20 minutes[4]. After the deceased was hit by the accused, he fell to the ground. The others then began to hit and kick the deceased while he was on the ground. PW1 then entered the compound and tried to pull the deceased out of the area, however the deceased refused to go. The others began throwing rocks at him and, fearing for his safety, PW1 fled the area and went to get help leaving the deceased still fighting. He was gone for about 15 minutes and when he returned he could not find the deceased.

18. PW1 said that although he knew the accused's son Arnold, he did not see him there that night. He said that it was the accused who struck the deceased with the piece of timber and that the accused was the only one who was holding timber in his hands. When it was put to PW1 that there were three others who were holding a piece of timber (Waneta, Joshua and John Ramo), the witness disagreed and said that it was only the accused who was holding any timber.

19. PW1 denied seeing the deceased holding any knife either when he was in the compound or while they were walking together for 25 minutes after they first met. The deceased had not said that he was Mike Tyson and did not ask for a smoke. He did not see the deceased cut or stab anyone even although he kept the deceased constantly in his view. The witness disagreed that the light was coming only from the security house and maintained that it was coming from a light on a pole outside the compound. He said that it was too dark for him to see the faces of any of the other people inside the compound although the accused was with the group and he could see the accused's face clearly enough.[5] The group of people were at one stage one meter from the deceased and although he could then see the deceased the lighting changed so much over that one meter that he couldn't make out the others.[6]

20. The evidence of PW1 is obviously critical to the Crown's case. It is clear that his identification has been made under very poor lighting conditions and in circumstances of severe stress and anxiety due to the personal danger he faced and the assault on his cousin brother. It is important to consider how his evidence fits into the balance of the Crown's evidence and whether there are any significant inconsistencies which might impact upon the reliability of his identification evidence. Other than his identification, the significant aspects of his evidence include the quality and source of light at the scene and the number of persons who were armed with lengths of timber or sticks.

21. The second witness called by the Crown as to the facts was Clinton Ilisia (I will refer to him as PW2 even although other police witnesses were called before him to testify as to matters relating to the taking of statements and the loss of an exhibit – matters to which I will return later in this Judgment).

22. PW2 was a 14 year old boy who was sitting within the compound area with the other older males who were drinking together prior to the entry of the deceased. He testified that he was near the front gate together with junior Abba, Donald, Arnold, Korita, Eric, Feata and others. They were all sitting down together when he saw the deceased push down the gate and walk in. The deceased appeared to be drunk and asked for cigarettes. One of the group said to the deceased "you're trespassing" and the deceased replied "I am Hansen, do you see me?" The deceased then pushed a boy who was sitting near the gate and then everyone became involved in shouting and fighting. He could see what was happening at the front gate because there was some light there but further inside it was dark. PW2 said the group was angry at the deceased trespassing and tried to push him out. He said that no words had been spoken prior to the deceased pushing down the gate (cf. the Crown's opening and PW1's evidence in relation to an exchange of swearing). The group was shouting loudly and calling for the accused (who was not then present with the others) to come down. He saw that the deceased was holding a knife. He saw no-one else with the deceased, in particular, no-one with a bicycle. As PW2 was the youngest person present, when he saw what was happening and when all of the men began to shout, he became frightened and ran from the scene. PW2 said that he knows the accused and did not see him that night.

23. PW2's evidence differs from the first prosecution witness' account particularly in relation to what happened and what was said prior to the entry of the deceased and also in relation to the possession of a knife by the deceased.

24. The next witness called by the Crown was Ray Kofumani (PW3). He happened to be standing near a shop close to the compound when he was startled by the deceased being pushed from the compound and collapsing in the middle of the road. He said to the group of people that they should not fight with the deceased as he was a local boy. There was not much light and that which was there came from the security area of the bank compound. There were about 10 people around the deceased although he did not recognise anyone as he was more concerned as to the condition of the deceased.

25. He went to the deceased and bent down to assist him while another boy brought some water. He and another person tried to lift up the deceased but could not as he was too heavy. As he was caring for the deceased, PW3 was struck on his back with a piece of wood. He could not say who struck him as there were about 5 people holding pieces of timber. He shouted at the group who then went back into the compound. At that moment, he saw the accused and his son come out of the compound gate. He did not say anything to the accused nor did the accused speak to him.

26. In cross examination, PW3 admitted that he was drunk on that night although he denied that this would cause him to forget some of the things that happened. He said that when he saw the people "holding sticks" they were outside the compound. He did not see the accused holding a stick and did not see him try to stop the others from fighting.

27. PW3's evidence also differs from PW1's account particularly in relation to the number of persons who were armed with lengths of timber or sticks. He also differs in his description of the source of the available light.

28. The next Crown witness called was Donny Osifelo (PW4). He testified that on that night he was resting in bed at the residential section of the Central Bank of Solomon Islands, when he heard people shouting loudly. He came out of his room and went down to the front gate of the compound. He couldn't see or hear clearly what was being said although he could make out the words "kill that man, who is that man?" When he walked closer to the gate, he was able to recognise some of the people present. Those whose names he knew included Arnold, Waneta and Ray. There were others present whom he knew but did not know their names. He estimates that there were 8 to 10 people present.

29. PW4 walked out of the gate and saw the deceased laying on the road in front of the gate. He could see and recognise him because that area was better lit than inside the compound. The deceased was laying face down, his eyes were closed and he was not moving. The witness called for someone to bring water. He washed the deceased and noticed an injury to the back of his head but could not wake the deceased. The accused, who is his best friend, then asked him to look for transport to take the deceased home. He was unable to find any transport. No-one suggested or mentioned taking the deceased to hospital.

30. He said that he saw a person holding a piece of wood, which was about a meter in length with dimensions of 3"x2". The person's name was Waneta. He only saw one person holding a piece of wood. PW4 waited with the deceased until the police arrived to take him to hospital. He went with the deceased and waited at the hospital until he died later that night. PW4 disagreed that the accused had shouted at him and asked him to call the police.

31. PW4's evidence also differs from PW1's account, particularly in relation to the number of persons who were present and armed with lengths of timber or sticks.

32. Doctor Roy Maraka (PW5) presented his post mortem report dated the 18 March, 2013. The doctor concluded that the cause of death was a bilateral subdural haemorrhage. It was consistent with the deceased having been struck on the head with a 3"x2" piece of timber. In the doctor's opinion, there were two blows to the head. His report describes one head injury at the lower back of the head and a second injury on the left side of the head. He believed that the numerous other bruises, lacerations and abrasions on the face, upper limbs, lower limbs and back indicated that it was likely that he sustained those at or around the time of death. Those injuries also were sustained with blunt objects.

33. If the doctor's evidence is to be accepted on these issues, and no-one has suggested that it should not be accepted, the deceased has been struck many blows all over his body with a blunt instrument or instruments such as a piece of timber. If PW1 is correct that the deceased was only struck once, then he has not seen the multiple blows that were inflicted upon the deceased. They may have been inflicted after he ran off. If the doctor is correct about the nature of the blows causing the multiple injuries all over the body of the deceased, then either the deceased was hit very many times with the one object or he was hit by many objects. Given the evidence as to the number of people who were armed with pieces of timber, I am satisfied beyond reasonable doubt that the deceased received multiple blows from several people who were armed with such weapons. Why then did PW1 not see anyone else armed with pieces of timber?

34. The next witness to be called by the Crown was Jerald Mao (PW6), a 15 year old boy. He was sitting in the compound area with others. He testified that he was present when the deceased kicked down the gate and entered the compound. He said that this frightened him and he ran away and sat at the security house. He was about 10 meters away when he later saw the accused grabbing the deceased and taking him out of the compound to the road. He says that a person was holding a piece of timber but he doesn't remember who that person was. The light in the area was coming from the security house and he could see clearly although he could not identify people.

35. In cross examination he agreed that when the accused grabbed the deceased they were not then fighting. The accused arrived only after the deceased had kicked the gate down. He did not see anyone fighting because he ran off. He was sitting drinking with people including the accused's son Arnold and others. There were about 8 people in the group and he saw no-one with the deceased.

36. As mentioned above, the crucial evidence implicating the accused comes from PW1. It is only he who says that the person who hit the deceased was the accused. He says that the accused struck the deceased once to the head. He says that it was not possible for anyone else to be holding a piece of wood and that no-one else had a piece of wood. He says that the lighting which came from a light pole, was sufficient for him to see and recognise the accused but not sufficient for him to see and recognise the others present. He says although he knows and could recognise the accused's son Arnold, he did not see him at all that night.

37. As I have alluded to, the differences between PW1's evidence and the balance of the Crown case on the issues of the source and quality of the lighting, who was present at the scene, how many of those present were armed with pieces of timber and how many blows were struck are considerable. I am not in a position to find with surety where the light was coming from, however I do find as a fact that the lighting within the compound where the fight took place, was very poor. The evidence that the lighting was sufficient for the identification of one person but insufficient for the identification of others who were close to and with that person, I find impossible to accept. This is particularly so in relation to the presence of Arnold Abba, a person known to PW1. If Arnold Abba was present, and despite my rejection of his evidence as untruthful and unreliable, I find that he was present, then I can find no reason why PW1 would not have seen him.

38. I find it to be more likely that the reason PW1 did not see him was that in the circumstances of the tension and fear of being under attack as the deceased was and as PW1 was later to become, too much was occurring in the poor light for reliable identifications to be made. In my judgement, that is why PW1 was not able to say that the accused's son was present.

39. Of course that must raise the question again of the reliability of PW1's identification of the accused. I do not mean by this whether or not the accused was present at all that night, for I find as a fact that he was. I also find as a fact that the fight had not concluded when the accused arrived. I accept the evidence of PW6 when he says that it was the accused who was holding the deceased and forcefully expelling him from the compound. But the issue here is not whether he expelled the deceased, but whether he struck him with a piece of timber.

40. PW1's evidence was that the whole group attacked the deceased in circumstances where the available lighting, whatever its source, was very poor. I reject his evidence that it was not possible for anyone else to be armed with pieces of timber and find that he simply did not see the several others who were armed. In those circumstances there was certainly the possibility that one of the several other persons present armed and fighting struck the fatal blow or blows. While I find that the accused was present during some of the fight, I cannot be satisfied that it was he who struck the fatal blow or indeed any blow with a piece of wood.

41. As a result of these findings of fact, I cannot be satisfied beyond reasonable doubt that the Crown have proven that it was the accused who struck the fatal blow or blows. On the basis of the way in which the Crown opened its case and also chose to present its case, namely that the accused was the sole assailant using a piece of timber to strike the fatal blow, the accused must be acquitted.

VERDICT:
42. It is therefore the finding of this Court that the Crown have failed to prove their case beyond reasonable doubt and the accused is hereby acquitted.

43. Having pronounced that verdict of acquittal, it is important for me to note that there are several matters concerning the investigation, prosecution and defence of this case that have caused me considerable concern.

The Police Investigation of the Case Against the Accused:
44. On any view of the Crown case, there were up to 10 people present in the compound when the accused was said to have struck the deceased. Of those, the Crown called two. One was a 14 year old boy who ran away out of fear and saw none of the fighting. The second was a 15 year old boy who also ran away out of fear and saw only the finish of the fight.

45. Why is it that none of the others were called? Why were no statements taken from them? Was it gross incompetence or sheer laziness? How can those in charge of the investigation have been satisfied with that effort and why were they not supervising the investigating officers? If they were supervising the investigating officers, then they are responsible for the outcome. If they were not supervising the investigating officers then they were similarly responsible for the outcome.

46. It is simply unacceptable that witnesses who may well have exonerated the accused were not brought before this Court. Indeed those witnesses may have avoided the necessity of charging the accused altogether. It is also unacceptable that those same witnesses who may have made the case against the accused were not brought before this Court. How is it possible that senior officers could be satisfied with producing evidence in support of their case consisting of the statements of two young boys who ran away and saw little, while up to 8 other witnesses were ignored? Is it incompetence, laziness, ignorance of proper investigative techniques or has the wantok system had an effect? I do not know the answer, but none of the possibilities inspire any confidence in the capacity of the police to properly, fairly and competently investigate serious crime. An innocent man is entitled to have a proper investigation of the offence before he is subjected to the expense, stress, strain and ignominy of being charged with murder. The community is entitled to have a proper investigation of a serious offence so that people who commit serious crimes are identified and convicted upon evidence obtained through proper investigation.

47. The alleged murder weapon in this case was a piece of timber about a meter in length and with the dimensions of 3"x2". I am told that the police seized the weapon during the investigation process. Obviously, any weapon used to kill another human being is an important piece of evidence in any murder case. From the nature of the weapon, a court can be assisted in determining what the intention of the accused was when he used the weapon on his victim. To illustrate with an extreme example, it is far easier for a court to draw the inference that an accused who uses a block of wood to hit the victim had an intention to kill the victim than where the accused hit the victim over the head with a feather. The nature of the weapon used can therefore inform the court on the issue of the intention of the accused.

48. In this case, the police have lost the murder weapon. When a police officer was called to this Court to explain how this could have happened, his explanation was that all the exhibits were put into containers pending the destruction of the building in which they were being kept. At one stage he said that the building holding the exhibits was destroyed while the exhibits were still inside the building. When asked whether he had checked the containers for the exhibit he said that he had and that the exhibit had disappeared. Exhibits do not disappear of their own volition yet no one has been able or perhaps more accurately, been willing to explain how it is that a suspected murder weapon can be treated and handled with such carelessness and negligence, that it somehow after being seized, disappears.

49. An important part of the legal process in criminal cases is that the defence are not taken by surprise when the evidence is led against them. Trial by ambush is not permitted and is patently unfair. For that reason the police have to provide the prosecution service with properly taken statements so that the prosecution can, in turn, provide them to the defence. Police officers identify potential witnesses and interview them to find out what they know about a particular incident. In the Solomon Islands, the statement is generally taken in Pidgin because that is typically the common language between the police officer and the witness.

50. At the conclusion of the statement, a witness is typically asked to read it over or the police officer reads it over to the witness. The purpose of this is to invite the witness, if he agrees that the statement accurately records what he told the police officer, to accept or adopt the statement as a true record of his statement. The witness indicates that he adopts the statement by signing it.

51. Those signed statements, in a fair process, are then served on the defence. By that method, the defence not only know what the case is against them but if the witness should say something in court which is different to what he says in his statement, he can be confronted with it under cross examination and his credit may be affected by his inconsistency.

52. So the process provides the defence with a technique to test the consistency, credibility, reliability and honesty of a prosecution witness. But this of course can only be done if the defence have been given the signed statements of the witness. An unsigned statement is of little use if the witness has not otherwise adopted it as an accurate record. If they are unsigned, then the witness has not adopted the statement as true and cannot be challenged in that fashion. It is an important strategy which is usually available to the defence in every criminal trial.

53. What happened in this trial? Several prosecution witnesses testified that they gave statements to the police about what they knew of the incident. They said that they gave their statements in Pidgin and that while they were giving their statements, the police officer was writing down what they said with a pen onto a piece of paper. I accept this aspect of their evidence to be entirely truthful. Later, they either read their statements or had the statements read to them and they adopted their statements by signing them. There were then several witness statements in police possession written in Pidgin and signed by the witnesses. If the witnesses gave evidence, which differed from their statements, the defence if they were in possession of the statements, could in the normal fashion, cross examine them on the differences.

54. However no original statements, that is, statements in Pidgin signed by the witness, were ever provided by the police to the prosecution and therefore not to the defence either. It did not hamper the prosecution but it seriously limited the defence in their cross examination of the witnesses at trial. What the police actually provided were statements which had been typed not written, in English not in Pidgin, and not signed or adopted by the witness. What the police produced were in effect what they themselves had composed and written in English.

55. I was told by a police officer that he was instantaneously translating into English and typing the statement at the same time that it was being given by the witness in Pidgin. One look at the statements presented by police allegedly in the words of the witness, particularly in the cases of young teenage witnesses who could barely complete full sentences in court, satisfies me that the police officer was not telling the truth about the manner in which the statements were taken. The statements produced were word perfect, in proper chronological order, grammatically correct without any corrections, additions, deletions or even repetitions. When the lack of continuity and cogency of their testimony is compared to their so called witness statements, there is only one conclusion open. The police officer involved did not take the statements in the manner in which he swore and compiled the statement in his own words without ever asking the witness to verify or adopt it. No-one of course will ever know whether what was produced by the police officer was ever said, even in terms, by the witness. And no-one will ever even know if the translation by police officers was accurate, given that they are not qualified interpreters.

56. But more significantly, for this trial, because the defence did not have the statements made by the witness as opposed to the suggested translation into English by the police officer, they were not then in a position to put any inconsistencies to the witness – they had no adopted statement with which to compare their testimony. Taking witness statements in this way is calculated to deprive an accused of his rights to cross examine and must be open to the suggestion that the police simply write their own witness statements. No civilised society, no legal system, no police force can tolerate that.

57. I would respectfully commend to the Commissioner of Police that she take whatever action she deems necessary in relation to those officers in this case who have so poorly performed their functions as sworn officers and their supervisors and to ensure that such practices as I have described as occurring in this case are not repeated. I would also respectfully recommend that she read the transcript of the evidence given by police officers in this case including the evidence of Constable Lawrence Iko (in relation to the taking of witness statements), Sergeant David Saueha (in relation to the supervision of the investigation) and Director John Lee (in relation to the proper keeping of exhibits).

The Prosecution of the Case Against the Accused:
58. In the situation where evidence is missing, it is a simple matter for a prosecutor to say that this is the evidence that the police have given me and that's all that there is. In a case such as this however, such an attitude ignores the onerous duty on a prosecutor and a prosecution service, as a representative of the State and its powers, to be scrupulously fair on any citizen whom it decides to prosecute. The power to alter a person's status from a citizen to an accused citizen is an awesome power and must be balanced by scrupulous attention to fairness by the prosecution.

59. In this case, the prosecution have not been fair to the accused. Unfairness lies in the failure of the prosecution to require the police to properly investigate the circumstances surrounding the death of the deceased. It exists in their failure to insist upon the questioning of the many witnesses who could reasonably be expected to throw light on the events and not to simply accept the half-baked, incomplete brief that they were presented. Unfairness lies in the failure of the prosecution to instruct the police to properly investigate whether those 10 or so others who were present support the suggestion that the accused was culpable or whether in fact they negate that suggestion. No prosecution should ever have been launched until this was clarified. Unfairness lies in the prosecutor accepting as complete the brief delivered by the police and unfairness lies in what is an apparent absence of any real thought being applied to the evidence that was going to be led against the accused.

60. I raise the issue of thinking about the case because in the present case, the Crown sought to convict the accused on the basis that he alone struck the fatal blow. On any view of the evidence (even the defence case), the deceased was attacked by a group of people some of whom were armed. Although the case was not opened in this way, if, on the Crown view the accused was part of that group, why was the case not presented on the basis of aiding and abetting or acting in concert? The issue of precisely who amongst the group struck the fatal blow then becomes far less important and the Crown might then argue that each of those persons who attacked the deceased with weapons or in the company of those with weapons, were all guilty of murder.

62. No submission was ever put to this effect by the Crown and it seems as if it was never even considered.

63. Unfairness to the accused lies in failure of the prosecution to serve on the defence original witness statements and not to collude in a practice, which severely restricts the cross examination capacities of an accused. It is no answer to say "this is all the police gave me". It is the responsibility of the prosecutor to be fair no matter what the police decide to do. If the police say they have no original statements then a simple instruction from the prosecutor to take them again would at least partly alleviate the disadvantage caused to an accused.

The Defence of the Case Against the Accused:
64. Court procedures exist for a party to bring issues of process before a court prior to a criminal trial commencing. In accepting the lack of disclosure without making any application to a court prior to trial for proper disclosure to be made, the defence have failed in their obligation to properly protect the rights of the accused. In doing nothing, they have placed the accused in jeopardy of being convicted of murder on poorly gathered evidence and of spending the rest of his life in jail. The fact that the defence were prepared to go to trial in the full knowledge that their ability to cross examine on behalf of the accused would be severely circumscribed is inexcusable and a dereliction of their duty as legal representatives.

65. Just as the police and prosecution ought to have made attempts at locating and then evaluating the evidence of the 8 to 10 missing witnesses, so too should the defence have done. Counsel for the accused told the Court that the witnesses had gone to Malaita but that no attempts had even been made to locate them. Any one of those witnesses may have been able to exonerate the accused yet absolutely no effort was made in his defence to find a single one of them.

66. We all, the judiciary, the Director of Public Prosecutions, the Public Solicitor and the community work under a legal system. We are all a necessary part of that legal system and for it to work in the manner in which it is designed, with fairness to the accused and to the community, each part of that system must play its role. A failure to do so by one or all parts of the system produces what we have had in this case, a systemic failure. While some may argue, in my judgment there is little ethical difference between an innocent man being convicted and a guilty man being acquitted. Unless the various components of our legal system can do better than they have done in this case, the recurrence of both results are an equally unwanted and unwelcome outcome.

THE COURT

^[1] Transcript, Day I, p.41
^[2] Ibid, p.56
^[3] Ibid, p.57
^[4] Ibid, p.67
^[5] Ibid, p.85
^[6] Ibid, p.87