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R v Sisifiu [2004] SBCA 17; CA-CRAC 016 of 2003 (11 November 2004)

SOLOMON ISLANDS COURT OF APPEAL

FILE NO/S: Criminal Appeal No 16 of 2003

PARTIES:

R

V

SISIFIU, Clement and DAEFA, Peter
(appellants)

CITATION: R v Sisifiu & Anor

DIVISION: Court of Appeal

PROCEEDING: Criminal Appeals

ORIGINATING COURT: High Court at Honiara

DELIVERED ON: 11 November 2004
DELIVERED AT: Honiara
HEARING DATE: 11 November 2004

JUDGES: Lord Slynn President and Goldsbrough and Williams JJA

JUDGMENT OF THE COURT

ORDERS:

1. Appeals allowed and convictions quashed

2. Enter verdicts of acquittal

COUNSEL: K Averre for the appellants
R Barry for the respondent

[1] THE COURT: The appellants Clement Sisifiu and Peter Daefa were convicted of murdering Richard Ramo at Sun Valley on 1 January 2003. Another person, William Malaketa, who is not a party to the appeal, was also convicted of that murder. A fourth person, Redley Clement Sisifiu, was acquitted.
[2] The prosecution case was that all four were directly involved in that the other three held or blocked the deceased to enable Malaketa to stab him. That was evidence given by a number of prosecution witnesses. The defence case on behalf of the appellants, each of whom gave evidence, was that Malaketa took matters into his own hands by stabbing the deceased and neither either anticipated his actions or in any way implicated themselves in what he did. The defence case on the part of Redley Clement Sisifiu was alibi; he was not there.
[3] The case against the appellants depended on the acceptance beyond reasonable doubt of prosecution witnesses where it was in conflict with the evidence of the appellants.
[4] Redley Clement Sisifiu was acquitted because the learned trial judge, after hearing alibi evidence and in particular the evidence of Lavelyn Maumuri, was in a state of doubt as to whether Redley Clement Sisifiu was present when the offence occurred. That did not necessarily mean he rejected the prosecution evidence, but his reasoning demonstrates how critical the issue of credibility was.
[5] As part of the alibi evidence for Redley Clement Sisifiu the defence called Paul Goreta and Abraham Fa’alu. The purposes of calling them was to say that Redley Clement Sisifiu was not at the scene. Those two witnesses were present when the deceased met his death and their presence was referred to in the evidence of some of the prosecution witnesses.
[6] Both Goreta and Fa’alu had been interviewed by investigating police and their statements were in the possession of the prosecution. Those statements had not been disclosed to the defence. In fact the non-disclosure extended to other important statements but it is not necessary to particularise them. This non-disclosure was a serious breach of duty by the prosecution. The law with respect to disclosure is clearly laid down by the House of Lords in R v Mills and Poole [1998] 1 Cr Ap R 44 and should be observed by all prosecutors within the Solomon Islands.
[7] Because the prosecutor was in possession of those statements of Goreta and Fa’alu he was able to cross-examine them as to the events surrounding the death of the deceased. That necessarily resulted in them giving evidence as to the movements of the appellants.
[8] As already noted the learned trial judge had to reject the evidence of the appellants in order to convict them. When issues of credibility are evenly balanced as here, and when in the case of Redley Clement Sisifiu the credibility factors resulted in an acquittal, it is impossible to determine accurately the effect of the cross-examination of Goreta and Fa’alu had in ultimately persuading the learned trial judge to convict. The prosecution clearly had an unfair advantage and that advantage could well have tipped the scales in the prosecution’s favour on the issue of credibility.
[9] The case against the appellants was not all that strong. That again is indicated by the acquittal of Redley Clement Sisifiu. Given that the convictions of the appellants could well have been dependent upon the unfair advantage the prosecution had by not disclosing the statements the convictions cannot be allowed to stand. The court cannot ignore the real possibility that a substantial miscarriage of justice occurred.
[10] A retrial would not in the circumstances be fair. Malaketa has been convicted and Redley Clement Sisifiu acquitted. A retrial of the appellants would be materially different from the trial now under review and would involve putting them in jeopardy again when the focus and emphasis of evidence would be vastly different as compared with the first trial.
[11] The court is conscious of the serious nature of the charges faced by the appellants but is of the view that they should not be retried. The result demonstrates the importance of counsel observing the procedural rules designed to ensure that an accused gets a fair trial.
[12] The orders of the court are:

(i) Appeals allowed and convictions quashed;
(ii) Enter verdicts of acquittal.