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Regina v Talamate [2014] SBHC 43; HCSI-CRC 443 of 2013 (14 March 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Maina, J)

Criminal Case No: 443 of 2013

REGINA

–V-

ELIAKIM TALAMATE AND ZUBULON VEA

Date of Hearing: 12th March 2014
Date of Judgment: 14th March 2014

For Respondent: Ms Suifaásia
For 1st Accused: Mr. Fugui
For 2nd Accused: Mr. Lapi

RULING ON APPLICATION
UNDER SECTION 118 OF EVIDENCE ACT

Maina J:

This is an application by the Prosecution under section 118 of the Evidence Act. Prosecution apply to admit and rely on a statement of a witness in the proceeding as they are not able locate the witness.

Briefly this application comes after I refused to further adjourn the trial of the case on the reason that further adjournment would add to the already excessively delay (8 – 9years) of the case against the two defendants.

Defence counsels objected the application of the ground that there was no reasonable notice given of the intention to rely on the statement as required under section 118 (2) of the Evidence Act. Counsel wish to cross examine the witness.

Prosecution said they are not able to locate a witness Mary Gasehena and applied to admit statement to the court. The statement was given to the Police on 2nd April 2005.

Mr. Leslie Mason, witness Co-coordinator with DPP's office gave evidence and said he enquired with Police in Buala on 3rd March 2014 and they confirmed that witness Gasehena is not at her village, Tatamba. On 6th March 2014 he was adviced by Police in Buala to enquire with the communities at Aola and Kobito in East Honiara. He spoke to the communities but nobody seems to know Mary Gasehena or who she is. They advised Mason to speak to Pricilla from Ysabel who married to a man from Savo Island which he did. Pricilla said she married to a man from Savo but separated from her husband. She does not live in Savo anymore.

Mason spoke to the first witness Zina Leamana and she told him that Mary Gasehena has married to a man from Shortlands. She did not know the name of the man and where about is Mary Gasehena.

The issue relates to a reasonable notice if it was given before this application was made to the court.

For the hearsay to be admitted in the proceeding under Section 118 of the Evidence Act the requirement of subsection (2) must be satisfied:

Section 118 (2) provides:

... In any criminal proceeding, no hearsay statement may be offered in evidence unless

(a) the party proposing to offer the statements has given reasonable notice of the intention to rely on the statement; or

(b) a other party has waived the requirement for notice; or

(c) the court dispenses with the requirement for notice for the interest of justice.

Reasonable notice under this provision depends on the circumstance of each case. For this case, at commencement and on instances during the trial the prosecution had said to the court that they were trying to locate one witness.

The defence counsels said there was no notice given by the prosecution to invoke under Section 118 of the Evidence Act or intention to rely on the statement. This application when it was presented was the first time for them to be aware of the intention to rely on the statement.

Further, just for the prosecution to come to the court and said that they tried to locate the witness and enquired to Buala Police on 3rd of March 2014 and the people at Aola/Kobito and Savo at the week of the trial but cannot find or locate witness Mary Gasehena, does not make sense or would satisfy the requirement of Section 118 (2) (a) of Evidence Act. This is so because the trial date for this case was fixed some time ago and even the trial commenced a week ago. The defence was to put on notice or aware of the application to admit or intention to rely on the statement.

Prosecution has not given any notice to the defence of their intention to make an application to admit the statement of the witness Mary Gasehena.

Order

The application is refused.

...................................................
Justice Leonard R Maina
Puisne Judge