Teikamata v Regina [2007] SBCA 3; CA-CRAC 27 of 2006 (30 March 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from a judgment of the High Court of Solomon Islands.
COURT FILE NUMBER:	Criminal Appeal No. 27 of 2006
DATE OF HEARING:	Tuesday 20 March 2007
DATE OF JUDGMENT:	Friday 30th March 2007
THE COURT:	Lord Slynn of Hadley P, Adams JA Salmon JA
PARTIES:	Patrick Teikamata (Appellant) -v- Regina (Respondent)
ADVOCATES: Appellant: Respondent:	Mr I Khan Mr M McColm & Chalmers
KEY WORDS:
RESERVED/DISMISSED:
PAGES:	1 - 5

JUDGMENT

INTRODUCTION

In August 2006, the appellant was convicted of rape and was later sentenced to 6 years imprisonment. He appealed against his conviction on two grounds. At the hearing leave was sought and granted to amalgamate those grounds. The amended ground of appeal is:

"That the learned trial judge did not direct himself adequately on the law relating to corroboration in sexual offence matters and erred in finding that the evidence of the complainant was corroborated in material particular."

Factual Background

In July 2004, the complaint then aged 15 went to a relative’s house to collect some clothes. The appellant (who was aged 24 at the time) and another person were at the house. Sexual intercourse took place in one of the bedrooms of the house. The complainant said that she was raped. The appellant said that the intercourse was consensual. The complainant suffered a superficial laceration of the vagina during intercourse. There was a considerable amount of bleeding but whether this was all due to the laceration or was in part due to some other cause was not clearly determined. The complainant had to be taken to the hospital and there made a complaint of rape as the result of which the appellant was arrested and charged. He pleaded not guilty but was convicted after trial in the High Court before Kabui J.

The Law on Corroboration in this Jurisdiction

We accept that in the Solomon Islands the practice is that the trial Judge must warn himself of the dangers of acting on the uncorroborated evidence of a complainant. This was a requirement in many common law countries, a requirement which, in many instances, has been abolished, usually by statute. The history of the rule and the direction required is set out in the judgment of Gibbs J in the High Court of Australia in Kelleher –v- R [1974] HCA 48; (1974) 131 C.L.R 534 at 553 –

"It is now established that in cases of rape and other sexual offences in which corroboration is not required as a matter of law the trial Judge should, as a matter of practice, warn the jury that it is dangerous to convict on the uncorroborated testimony of the person (whether male or female) on whom the offence was committed, although the members of the jury may act upon that testimony if, after scrutinizing it with great care, and paying heed to the warning, they are satisfied of its truth, but of course there is no set form of words that must be used. This rule of practice is of comparatively recent origin; its first recognition in a reported decision appears to have been in R –v- Graham (1910) 4 Cr App R 218. However, it was quickly accepted as peremptory, and by 1919 Isaacs J. was able to say that "the practice is so well established as to have, as was said of the analogous case of accomplices, ‘almost the reverence of a rule of law’ ":Hargan –v- The King [1919] HCA 45; (1919) 27 CLR 13, at p.24. The practice appears originally to have been formulated under the influence of the similar rules relating to the corroboration of the evidence of young children and accomplices, but its real reason and justification would appear to be that which was suggested by Salmon L.J. (as he then was) in Reg. v. Henry; Reg. v. Manning (1968) 53 Cr App R 150, at p153 – that it is dangerous to convict on the evidence of the complainant in a sexual case because experience shows that in such cases people do sometimes tell "an entirely false story which is very easy to fabricate, but extremely difficult to refute"."

Consideration of this case

Mr Khan for the appellant submitted that the trial Judge was required by law to specifically direct himself on the dangers of acting on uncorroborated evidence and failed to do so. He acknowledged that the Judge identified the existence of corroborating evidence and referred to that evidence in his judgment. He submitted however that this was not enough. The Judge was required specifically to direct himself as indicated above. We do not accept that this is so. We adopt what was said by the Chief Justice in Farsy –v- Reginam [2004] SBHC 120 when referring to the corroboration warning applicable in the case of child complainants –

"The situation in Solomon Islands is different where the magistrate or judge presiding is judge both of fact and law. The requirements of a warning to that extent can be relaxed as a judge or magistrate in most instances would be legally qualified in any event and cognizant of the requirements of law on corroboration. As a rule of thumb however, magistrates and judges do make a point of saying in their judgments that they do bear such warnings in mind."

We accept the submission of Mr McColm on behalf of the Crown that it was sufficient for the Judge to state that he was satisfied as to the truth of the complainant’s testimony even in the absence of corroborating evidence and to make extensive reference to corroboration in his decision. It is clear that the Judge had in mind the requirement that exists in this jurisdiction.

Mr Khan then submitted the Judge erred in finding that the complainant’s evidence had been corroborated in any material particular. The corroboration relied upon by the Judge was:-

(1) The evidence of Andrew Teitaka which he found confirmed the complainant’s evidence that she was sexual harassed without her consent in the kitchen area.

(2) The medical evidence of the laceration to her vagina which the Judge found was consistent with the complainant’s evidence that intercourse was forced on her and inconsistent with the appellant’s evidence that the intercourse was consensual and that the complainant guided his penis into her well lubricated vagina.

(3) The complainant’s state of distress immediately after the incident and the fact of the bleeding was also found to be corroborative of the complainant’s evidence of rape.

In respect of the first of these issues, Mr Khan pointed to evidence of Andrew to the effect that the accused was touching the complainant’s private part and that he saw her breast. We do not accept that this evidence is inconsistent with the Judge’s finding. As to the third issue, we accept that the distress of the complainant may not necessarily be corroborative of an account of rape. We consider that overall the Judge was justified in finding that there was corroboration particularly in relation to the actions of the appellant prior to the intercourse taking place and the injuries of the complainant as a result of that intercourse.

However, the Judge went on to find that he would believe the complainant’s evidence even in the absence of corroboration. He was entitled to rely on such a finding. He gave reasons why he accepted the complainant’s evidence and rejected that of the appellant. There are very good reasons why we should accept the strong findings as to credibility in this case. In addition to the usual advantage that the trial Judge has of seeing and hearing and assessing the witnesses and their evidence we have the disadvantage of working from a transcript of evidence which is not a verbatim recording. Rather it is the notes made by the Judge from the translation of the pidgin language in which the evidence was given. We are not persuaded that any of the matters referred to by counsel for the appellant in his very careful and detailed submissions would justify us in disagreeing with the Judge’s credibility findings. For those reasons we dismiss the appeal.

The rule as to corroboration

We have been invited by Crown Counsel to consider and give directions on whether the warning as to the danger of convicting on uncorroborated testimony continues to be required in the Solomon Islands.

In considering this issue we have been much assisted by the decision of the Court of Appeal of Fiji in Balelala –v- State [2004] FJCA 49. In that case the Court of Appeal considered in very considerable detail the question as to whether it was appropriate that the rule requiring corroboration should continue. It should first be noted that the rule is one of practice. It is so described in the Balelala decision and in the decision of the Judicial Committee of the Privy Council in R v Gilbert [2002] UKPC 17; [2002] 2 WLR 1498. In Balelala, the Court reviewed the practice in a number of countries. It referred to Gilbert which concerned an appeal on the Eastern Caribbean Court of Appeal. The Judicial Committee held that in sexual offence cases the Judge should have a discretion as to whether to give a corroboration warning, and if so in what terms depending on the circumstances of the case. The Fiji Court noted a number of countries where the requirement for corroboration had been abolished through legislation and further instances where that requirement had been struck down in decisions of appellate courts. The Court held that the requirement should no longer apply in Fiji.

Obviously in any criminal trial where the Court must decide the issue of guilt on an assessment of the credibility of the two principal witnesses, it will wish to look for corroboration of the complainant’s evidence. If such corroboration does not exist then, as counsel for the appellant said, the court must be satisfied that the victim has told the truth to the court and must be satisfied beyond reasonable doubt of the guilt of the accused. Provided this approach is taken there seems to be a certain artificiality about requiring a Judge to give him or herself the warning presently required in the Solomon Islands particularly when, as here, criminal matters are tried before a Judge alone rather than before a Judge and Jury. Because we have in any case dismissed this appeal, it is not necessary for us to make a finding on whether the rule of practice should continue. If it is to be abolished it would be preferable that this be done by statute as has been the case in many other Commonwealth countries. If the issue is not dealt with in this way, then it may be necessary for this Court on a future occasion to directly address the question as to whether the rule should be abolished.

Lord Slynn of Hadley
President of the Court of Appeal

Adams JA
Member of the Court Appeal

Salmon JA
Member of the Court of Appeal