CRC, 14, 95.HC.

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.14 of 1995

REGINA

-v-

PHILIP TAHEA AND TWO OTHERS

High Court of Solomon Islands
(Palmer, J)
Criminal Case No. 14 of 1995

Hearing: 19th April 1996
Ruling: 19th April 1996

F. Mwanesalua for the Prosecution
M. Samuels forTahea
T. Kama for A. Teikagei
P. Lavery for D. Teikagei

PALMER J: The issue raised in the objection made by Mr Lavery is that the learned Director of Public Prosecutions should not be allowed to raise issues not canvassed by prosecution witnesses, when cross-examining defence witnesses before close of the prosecution case by virtue of the fact that a view had been undertaken by the learned Director Public of Prosecution alone and in the presence of a number of possible Prosecution witnesses but who were not called.

The law does not condemn a private view of the scene of the crime in the absence of a judge and witnesses, but it does say that it would be wrong for a view to take place with witnesses in the absence of a judge, and is a defect which would vitiate a trial (Tameshwar and Another v. R. [1957] A.C. 476).

The actions taken by the learned D.P.P. on the face of it would not be wrong. This is on the basis that it was a private view and that no witnesses accompanied him or that those persons who accompanied him are not called as witnesses. The distinction to be made here is not so much the fact that a private visit had been made, but that as a result of that, the impression is given on matters clearly in dispute that fresh evidence or further evidence is being introduced by the learned Director under the guise of cross-examination, and further giving the wrong impression that other witnesses could be called to contradict defence witnesses in what they have said by raising the possibility that actions for perjury could be instituted at a later stage. These bold assertions were made directly as a result of that private visit. That with respect, does give the impression of an unfair advantage to prosecution against the defence and in the interest of justice, appropriate remedial actions should be taken to remove such impressions at this stage.

One such action would be to require prosecution to try and confine itself strictly to matters only raised by prosecution witnesses. I think that may be a difficult task for prosecution and may on one hand unfairly restrain the hand of the learned Director to cross-examine on all matters which he considers relevant. It may be a bit difficult to draw the line where such cross-examination should stop, especially when such matters may have indeed been raised generally by prosecution witnesses, or by defence witnesses and that all he is doing is to pick on them in more detail.

Having considered that option, I do not think it would satisfactorily cure the wrong or unfair impressions given at this stage of the trial.

A better approach in my view would be to have a view of the locus in quo conducted at this point of time, but in the presence of Legal Counsels and the court only; witnesses are to be excluded. Also I would suggest that Legal Counsels agree on certain specific sites or spots which you would want the court to take note of, apart from a general view of the locus in quo. I stress that no communication about the results of that visit should be made by counsels to their witnesses or anyone going on that view.

There should preferably be someone independent or objective who knows the place and who can assist with identifying the sites.

The matter should be adjourned at this point and arrangements be made for the view to take place sometime next week, if possible, I would suggest that the services of a patrol boat be requested.

A. R. PALMER
JUDGE