Tebounapa v Reginam [1999] SBCA 5; CA CRAC No 2 of 1999 (4 June 1999)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Criminal Appeal Case No. 2 of 1999
(an appeal from Criminal Case No. 33 of 1997)

WILLIAM TEBOUNAPA

v

REGINAM

THE COURT: Kapi JA., Casey JA, Awich JA.

ADVOCATES
Appellant: Andrew Nori
Respondent: DPP for the Crown

DATE OF HEARING: Monday 31^st May, 1999
DATE OF DELIVERY OF JUDGMENT: Friday 4th June, 1999

KEY WORDS:
Indecent assault; rape by customary healer - consent induced by misrepresentation.

EX TEMPORE/RESERVED: Reserved

ALLOWED/DISMISSED: Dismissed

JUDGMENT

THE COURT: The appellant was found guilty in the High Court on one count of indecent assault contrary to s.133 (1) of the Penal Code, Cap 5 (now s.141 (1), Cap 26) and on one count of rape contrary to s.128 (now s.136). The offences were against two different women. On 10 February 1999 he was sentenced to concurrent prison terms of 12 months for the indecent assault and 6 years for the rape. He filed his own appeal against conviction and sentence without first obtaining leave in terms of s.20 (b) and (c) of the Court of Appeal Act, Cap 6, but on Mr Nori's application we granted an extension of time under s.32 (1) (a) to apply for such leave, and exercised our discretion under s.47 to' allow the appeal against conviction to proceed on issues of fact, and the appeal against sentence to proceed also.

The appellant was known to both complainants as a customary healer and each gave evidence of going to a room next to his workshop at different times and receiving treatment which involved pressing parts of their bodies while they lay on the floor, after removing their clothing. The first woman said that he pressed her belly down towards her vagina and then held and stimulated her clitoris which she did not want and it embarrassed her. He stopped when another man came to the room. She said the appellant assured her that this was part of the treatment for her complaint, and that she should trust him.

She was told to come back the following day when he pressed her again, but there was no repetition of the sexual conduct, which formed the basis of the indecent assault charge.

The count of rape related to the other complainant who also visited the room for pressing. On her first visit the appellant told her that she was seriously ill and would die next month unless she allowed him to have sex with him. When she asked whether she should tell her husband, or seek his permission, she said the appellant threatened to stop the treatment if she did; and he told her she should be thinking about her young children. She said she was frightened lest she died. She returned the next day and again pressed her as she lay on the ground, telling her she must have sex to remove poison water so that her illness would go away. He lay on top of her and had intercourse, and said she must not tell her husband about it. She returned the following evening when she was pressed outside the room. The complainant said she was no better as a result of the treatment and about a week later when one of her children became ill she told her husband about the sexual intercourse.

In cross-examination neither complainant deviated in any important particular from their accounts of what had happened. In the second case the complainant's husband had come with her and received treatment separately, and was not in the room with his wife when she was being treated, but he was not far away outside. He gave evidence for the prosecution. On most occasions the appellant's wife was also in the vicinity.

The appellant gave evidence supported by his wife, and agreed he had treated both complainants by pressing in the way they described, except in the second complainant's case for a much shorter time than the hour she and her husband estimated. He denied the allegations of stimulating the clitoris of one and of having intercourse with the other, said this conduct was not part of the treatment. He described the room as a 16' x 16' office opening into his engineering workshop, with nothing to stop others entering at any time, including his wife who helped him in his work and sometimes with treatment.

The trial judge set out the relevant evidence at some length in his reserved decision, and while noting some understandable confusion about details, he said he preferred the complainants' accounts over the evidence given by the appellant. He clearly accepted both women as truthful and reliable witnesses. He then dealt with the need for corroboration, reminding himself of the danger of convicting in such cases on the uncorroborated evidence of the complainants, but citing decisions accepting that even without corroboration the Court could do so if it was completely sure that they were telling the truth. He was satisfied that it was safe to act on the complainants' testimony to find the accused guilty as charged of indecent assault and rape.

Consent was not an issue in either case. The first complainant said in evidence that she did not want the appellant touching her clitoris and was embarrassed by it. In the other case the complainant consented to intercourse, but the definition of rape in the Penal Code covers sexual intercourse without consent, or with consent if it is obtained by means of false representations as to the nature of the act. Here, on the complainants' evidence, the intercourse was falsely represented to her as an essential part of the treatment to make her well.

The ground of appeal against conviction presented by Mr Nori was that the judge wrongly applied the standard of proof. However, in reality his submission was that in the circumstances in which the offences were said to have been committed, and from the complainants' overall conduct, the judge should not have believed them; or at least he should have been left in reasonable doubt that the offences occurred. He pointed out that the conduct occurred in a room easily accessible to any one in the vicinity; that the appellant's wife and the second complainant's husband were nearby and could easily have seen what was going on, and indeed one man came to the room while the first complainant said the appellant was rubbing her clitoris. He said these circumstances were known to the appellant, making the likelihood of his indulging in the sexual activity described so remote as to render the complainants' evidence about it quite unbelievable.

Mr Nori also submitted that both of them were mature married women who made no protest to their husbands about the alleged misconduct, even though they were nearby; that they came back for further treatment; and that the only evidence of complaint was that of the second woman to her husband, made a week after the intercourse. He was also critical of the fact that they had not sought proper treatment at the local hospital.

The judge referred to the circumstances in which the offending took place, accepting that the room was dimly lit, and the treatment was carried out in the evening or at night. We can see nothing inherently improbable in the complainants' evidence. Sexual misconduct which may not have been feasible in the daytime could well have been attempted in these circumstances in a darkened room, where the appellant had satisfied himself that the victims would not protest, and where he could expect that his wife and the complainant's husband were unlikely to interrupt the course of treatment. Certainly there was a risk, but one that a sufficiently determined man might consider worthwhile in order to gratify his lust. At worst, even if he were discovered, he might have thought there was a reasonable chance of passing off his conduct as legitimate treatment rather than sexual activity.

In assessing the effect of the complainants' conduct on the reliability of their evidence, the judge pointed out that the relationship between them and the appellant was one of complete trust, similar to that between a patient and a doctor. The first woman spoke of the assurances the appellant gave her when massaging her clitoris, which she evidently accepted; the second woman was clearly badly frightened by his predictions that she would die in one month, and in that belief she agreed to submit to intercourse and obeyed his instruction to say nothing about it. Her child's illness a week later evidently caused her to have second thoughts, and she then told her husband.

We see nothing in the circumstances surrounding the offences, nor in the attitudes and conduct of the complainants which causes us to have any reservations about the judge's acceptance of their testimony as proof beyond reasonable doubt of the appellant's guilt. Accordingly the conviction appeal must be dismissed.

Sentence appeal

Mr Nori rightly accepted that the 12 months' imprisonment imposed on the indecent assault count was within the range of appropriate sentences. As to the concurrent term of 6 years on the rape count, his submission was that too much regard had been paid to breach of trust as an aggravating feature. He criticised what he saw as the judge's acceptance of the situation of a customary healer as equivalent to that of a properly qualified doctor who is subject to stringent rules of ethical conduct. In his submission this would result in such healers having to comply with impossibly high standards of practice.

With respect to Counsel we think he misunderstood His Lordship's comments. He was doing no more than pointing out that those consulting customary healers could be expected to repose trust in them, making his point by a comparison with the ordinary doctor/patient relationship. At the level of the complainants' dealings with the appellant in this case, the nature of the trust is the same; the patient or client places his or her body at the disposal of the doctor or healer for treatment, trusting that they will do only what is necessary for that purpose, and will not use them for the gratification of their lust or for some other unconnected purpose.

There was a clear breach by the appellant of that trust in this case, and we are satisfied that the sentence of 6 years for the rape cannot be regarded as excessive.

Results

Appeals against conviction and sentence dismissed.

Kapi J.A
Casey J.A.