Alualu v Regina [2006] SBCA 9; CA-CRAC 016 of 2005 (31 May 2006)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION	Appeal from a judgment of The High Court of Solomon Islands (Kabui, J.)
COURT FILE NO.	Criminal Appeal Case No. 16 of 2005 an appeal from CRC No. 214 & 215 of 2004
DATE OF HEARING:	Tuesday 16th May 2006
DATE OF JUDGMENT:	Wednesday 31st May 2006
THE COURT:	Lord Slyn of Hadley, President, Glen Williams JA, Member Gordon Ward JA, Member
PARTIES:	FIASI ALUALU AND SUSUI BAKELOA -V- REGINA
ADVOCATES Appellant Respondent	E. Garo C. Weir
KEY WORDS:	Where both appellants were convicted after a joint trial of rape and sentenced to 3 years imprisonment – whether the conviction should be overturned on the basis of 'consent' – whether the sentence was manifestly excessive in all the circumstances.
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED:	Each appeal against conviction and sentence is dismissed.
PAGES:	1-5

JUDGMENT OF THE COURT

Each appellant was convicted after a joint trial of raping Esther Ethel on 3rd April 2004. Each act of intercourse took place in bush land. It was admitted that Susui Bakeloa first had intercourse with Esther Ethel, followed a short time later by Fiasi Alualu having intercourse with her. At the close of the prosecution case the trial judge acquitted Fiasi Alualu of raping Julian Wanete’enia at about the same time and place.

The convictions were recorded on 22nd April 2005 and each was sentenced on that day to 3 years imprisonment.

Fiasi Alualu lodged a Notice of Appeal against conviction and sentence on 20th April 2005. Susui Bakeloa lodged an appeal against sentence on 26th April 2005. Those appeals were lodged within time. Then on 9th May 2006 Susui Bakeloa lodged a notice of appeal against conviction. It did seek an extension of time, and provided no explanation for the delay nor put forward any grounds on which the court would be asked to extend time. Notwithstanding that, Counsel for the respondent did not object to an extension of time being granted and the court so ordered.

Each appellant as already noted admitted the relevant act of intercourse and the only issue at trial was consent. On appeal each appellant contended that the finding that the complainant did not consent was against the weight of evidence. Each also contended that a conviction should not have been recorded in the absence of corroborating evidence. Counsel emphasized inconsistencies between the complainant’s evidence and that of other witnesses, particularly Julian Wanete’enia. Finally, it was contended that the trial judge erred in the way he regarded and applied the evidence of Julian Wanete’enia.

The complainant Esther Ethel was aged 14 when the intercourse occurred and her evidence was that she was a virgin until then. That was not medically confirmed but there was no evidence to the contrary. She was related to Julian Wanete’enia; in evidence she referred to the relationship as 'sisters' whereas Julian Wanete’enia said they were 'second cousins'.

Julian Wanete’enia was called as a prosecution witness on the joint trial. She was at that stage a complainant in a rape charge against Fiasi Alualu. Her evidence in chief in broad terms was that the two girls had intercourse with the two appellants according to a pre-arranged plan; it was consensual. She concluded her evidence in chief by saying:

'I told my relatives lie from my story today. I told the police lie'. Under cross-examination she made the following statements: 'I told Fiasi that people forced me to tell Police the story of rape. ... I am now telling the truth. I told lies to the Police because they forced me to do so. ... My people forced me to lie to the Police. ... I told lie in my paper to the Police'. She also described Fiasi at the time of the trial as her 'lover'.

It is also not irrelevant to note, though the point was not adverted in by the trial judge in his reasons, that, on the evidence of Julian Wanete’enia, Fiasi Alualu could not have had intercourse with Esther Ethel; but admittedly he did. After the intercourse between her and Fiasi Alualu, Julian Wanete’enia has the two of them going 'back to the big road' and waiting for Susui Bakeloa and Esther Ethel 'under the cocoa'. Then each pair washed separately in the stream and returned home. When specifically asked, she replied: 'I did not know whether Fiasi went with Esther on Saturday of the incident'.

In his reasons the trial judge disposed of the evidence of Julian Wanete’enia as follows 'I do not believe her. My view of her was that what she told the Police was the truth. ... I find that Julian was lying when she adopted the version of facts being put forward by the two accused. I disregard her evidence as having any weight at all. I reject her evidence'.

Counsel for the appellants challenged that finding that what she told the police was the truth because the trial judge did not know what was in the statement of Julian Wanete’enia to the police. That is strictly correct; one cannot say where the truth lies with respect to her various statements. She admitted to lying. If her evidence in court was to be believed she wrongly accused her lover of rape, and persisted with that false accusation until called to give evidence at trial. She admitted to telling the Police it was rape and it was not necessary to know the detail in her statement to the Police in order to reach the conclusion that she was not a credible witness. The trial judge was justified in rejecting her evidence. The failure of the prosecution to have her declared hostile and have her police statement tendered only benefited the applicants. If the statement had been so tendered it would have been evidence against them.

Once the evidence of Julian Wanete’enia is rejected in it’s entirely one can no longer speak of inconsistencies between the evidence of Esther Ethel and that of Julian Wanete’enia. Once that stage was reached the only relevant evidence was that of Esther Ethel and the two applicants.

It was clearly within the province of the trial judge to reject the evidence of Julian Wanete’enia. The trial judge had the advantage of seeing each of the female witnesses and that undoubtedly influenced his ultimate conclusion.

One matter that was agitated both at trial and on appeal was the extent to which there had been contact on the day in question between the appellants and the girls. There appears to have been little if any contact between the appellants and Esther Ethel before that day. There appears to have been a close relationship, probably sexual, between Julian Wanete’enia and Fiasi Alualu before that day. Susui Bakeloa said in evidence that on the day in question he 'asked Julian for Esther.' He then said 'Julian said she would ask Esther for me.' As Fiasi Alualu put it in his evidence: 'We use Julian to woo Esther to us.'

Much was made in the course of argument as to alleged inconsistencies in the evidence of Esther Ethel as to her contact with the appellants on the day in question prior to the incidents giving rise to the changes. Ultimately we have come to the conclusion that though there was ambiguity in her evidence, and possibly some inconsistency, such matters do not make the convictions unsafe. It must be remembered in considering this issue that the trial judge accepted Esther Ethel as a truthful witness. On the critical facts relating to the acts of intercourse he expressly rejected the evidence of each of the appellants. It is also clear he rejected the evidence generally of each appellant where it different from the evidence of Esther Ethel. He had the advantage of seeing each of those witnesses over a period of time and was in a position to make a judgment on credibility which is not enjoyed by this court.

The trial judge did not deal in his reasons with the alleged inconsistencies as to contact between the parties prior to the commission of the offences. Because he clearly preferred the evidence of Esther Ethel to that of each of the appellants, there can be no relevant inconsistencies between the evidence of Esther Ethel and the appellants. An attack can now only be mounted against the evidence of Esther Ethel because of alleged internal inconsistencies.

In evidence in chief Esther Ethel said:

'Locker was been played near our house. I played locker. It is a card game. I, Julian and my brother were playing, locker. ... Fiasi and Susui were drunk when they came pass our house. ... We then left to harvest cocoa I and Julian. ... I did not speak to any of them. They never spoke to us about harvesting cocoa together. ... Fiasi and Susui were still there when we left to harvest cocoa.'

She also said that earlier that day she and Julian had been at the market, but she did not see the appellants there.

Under cross-examination by counsel for Fiasi Alualu she confirmed she did not see the appellants at the market. She said she did 'not know about Fiasi returning and playing locker near our air drier.' She said she did 'not recall Susui coming to us to arrange to meet them'. Essentially she denied any arrangement to meet the boys near the river.

She told Counsel for Susui Bakolea that there were lots of people at the market and she did not see the boys there. She did not see Susui walking with Julian there. In relation to the locker game she then said:

'I and Julian stayed where people playing locker. We also played locker. The others were also there. I did not see Susui. Susui came down to where we were playing locker. It is not true that Susui told Julian to go first to the cocoa. I did not know that. I and Julian went to the cocoa. I and Julian went together at the locker game. Julian did not leave me at any time. I and Julian did not leave for cocoa place after Susui arrived. Susui was with us at the locker game sometimes before. I and Julian went to the cocoa place. It is not true that me, Julian and Susui harvested cocoa together. ... It is not true that Fiasi and others met us there'.

In his evidence Susui made no mention of playing locker or being at the game.

It is clear that the evidence as quoted is a summary of what the witness said. We do not have the advantage of full questions and answers. In my view while there are some apparent ambiguities in the evidence as recorded there are no substantial inconsistencies such as would create a doubt as to the credibility of the witness. Critically for present purposes she consistently maintained she was not a party to a pre-arranged meeting with the boys at the river. Julian might have been a party to some arrangement with the boys but that does not affect the credibility of Esther Ethel. If, as each appellant contends, Julian Wanete’enia was asked to procure Esther Ethel for them, that could only strengthen the prosecution case that Esther Ethel was raped.

In evidence in chief the complainant said she 'reported the incident to her mother that same day'. But in almost the next answer she said 'we did not report immediately, I was afraid of our brother in case he got angry and beat me'. She also said: 'My brother asked me before I told him'. She was then extensively cross-examined about making a complaint. At first she said she made complaint to her brother on Saturday evening. That appears to have been linked to her getting into trouble because she stayed out late on the Sunday. It was some time after that her father reported the matter to the police. In cross-examination she said that Susui and Fiasi paid compensation, but she was not asked about that in any detail. Significantly neither Counsel asked her about a demand for red money referred to by each appellant in his evidence

The trial judge regarded the evidence of each appellant as to the demand for compensation as 'of no consequence'; the real issue was whether or not the complainant had been raped. It is probably an issue which should have been further explored, but as the issue was not raised in detail with the complainant it cannot affect her credibility.

Whilst there is ambiguity in relation to recent complaint it was a matter which, after consideration, the trial judge considered did not adversely impact on the complainant’s credibility. It cannot be said he was wrong in so holding.

The trial judge correctly directed himself with respect to corroboration and it cannot be said that his decision to convict in the absence of corroboration was wrong.

In the Notices of Appeal it was said that the trial judge acted inconsistently in accepting Julia’s evidence in order to acquit Fiasi of raping her, yet rejected her evidence in the cases involving Esther. That is not as. He did not accept Julia’s evidence in acquitting Fiasi of raping her. The position was that there was simply no evidence that Fiasi raped Julia; it was for that reason there was an acquittal.

It follows that the appeals against conviction should be dismissed.

Each of the appellants also contended that the sentence of 3 years imprisonment was manifestly excessive. Counsel emphasized there was a similarity in age between the complainant and the appellants. At the time of the offences Susui was aged 15 years and Fiasi 15 years 8 months. Neither appellant had a criminal history.

Each was sentenced as a juvenile and were it not for that the sentence would be regarded as too low. Rape is a serious offence. There was no prior association between the complainant and either appellant. On the evidence of each appellant, they arranged with Julia a meeting which enabled them to take advantage of the complainant. It was an over statement for the trial judge to describe this incident as a 'gang rape', but it was nevertheless a serious example of the offence of rape.

In the circumstances the sentences imposed were appropriate.

Each appeal against conviction and sentence should be dismissed.

Lord Slynn of Hadley P
Williams JA
Ward JA