Ottoasi v R [2021] SBCA 23; SICOA-CRAC 22 of 2020 (30 September 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Ottoasi v R
Citation:
Decision date:	30 September 2021
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands( Maina J)
Court File Number(s):	22 of 2020
Parties:	George Ottoasi
Hearing date(s):	Paper Hearing August 2021 Sitting
Place of delivery:
Judge(s):	Goldsbrough P Hansen JA Gavara-Nanu JA
Representation:	Alasia B for Appellant Rizzu E for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offenses) Act 2016 S 136 (F) (1) (a) (b) [cap 26], Constitution S 10 (2) (e), Evidence Act 2009 S 66 (1) (a) (b) and (c), Subsection (2) (a), Court of Appeal Act [cap 6] S 23 (1)
Cases cited:	Mechanical & General Inventions Co. & Lebwess v. Austin & the Austin Motor Co. [1935] A.C 346 Murdock v. Taylor [1965] 49 Cr. App R 119; [1965] A.C 574 and R. Funderburk [1990] 90 Cr. App R 466, Wakely & Bartling v. R [1990] HCA 23; 64 ALJR 321, Brown v. Dunn [1894] ER 67, Ganga v. The State [1994] PNGLR 323, Natei v. R [2013] SBCA 14, Galea v. Galea [1990] 19 NSWLR 267, Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55,
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-19

JUDGMENT OF THE COURT

1. The appellant was charged with raping an adult female, namely Julie Vilaka ('the complainant') on 26 July 2013 contrary to s. 136 (F) (1) (a) (b) of the Penal Code, Cap. 26 as amended.
2. On 3 June 2020 the appellant was tried before the High Court after pleading not guilty to the charge. On 13 August 2020, he was convicted of the alleged offence. On 14 October 2020, he was sentenced to 5 years imprisonment less period spent in custody.
3. The appeal is only against conviction.

Prosecution case

4. The prosecution called five witnesses including the complainant who was the principal witness. The complainant was first to give evidence. Her story was that in late afternoon on 26 July 2013, she travelled to Honiara Hotel where she was working as a supervisor. She was going to start work at 5pm because she was on night shift. She said, it was raining so the roads were wet and muddy. She was dressed in a pair of long black tights (tights), a short skirt and a top. She first caught a bus to work, she got off some distance from Honiara Hotel. As she was walking to Honiara Hotel, she met the appellant about several 100 meters from Honiara Hotel. The appellant was standing beside his taxi which he parked on the side of the road. He was cleaning the body of the taxi with a rag. The complainant asked the appellant if he could drop her at the Hotel in his taxi, but the appellant refused. As she walked on, the appellant called her back. She went back and got into the taxi and sat in the front passenger seat. According to the transcript of her evidence, as soon as she got into the taxi, she greeted the appellant by saying - "but good to see you again".
5. The appellant then was in his mid 30’s and the complainant a single mother, was older.
6. According to the complainant, when they arrived at the front of the Honiara Hotel, she wanted to get off, but the appellant wanted to drive a bit further. When they eventually stopped, the appellant asked her for sex, but she refused, and they started arguing. She said before the taxi stopped, they were talking normally and there was no argument between them. She said despite her refusal, the appellant removed her tights and sexually penetrated her. She said, while the appellant was having sex with her, she did not struggle or fight him because she was sick with asthma. She said, she "laid still" during sexual intercourse because of her illness. When he finished, she started to struggle and hit the side of the taxi and managed to open her side of the door with her small figure. As soon as she was out of the taxi, she called out for help.
7. In her evidence in-chief, the complainant told the court that she just got her clothes after the appellant raped her and “jumped” out of the taxi "naked" and got dressed "outside". However, the rest of the prosecution witnesses told the primary Court that when she was calling for help, she was fully clothed, they only saw her adjusting the tights she was wearing. They gave accurate description of the types of clothes she was wearing.
8. The rest of the prosecution witnesses also gave different stories of what they heard from the complainant when she was calling for help. One of them said the complainant when calling for help said - “taxi driver raped me inside the car”. The other three said the complainant said - "the man in the taxi likes to or wants to rape me". One of these witnesses said the day was cloudy but was a fine day.
9. The complainant admitted getting in touch with the appellant on his mobile phone sometime after the incident. She said, she first got a mis-call from the appellant, but she did not response because she did not recognise the number. Later, she got phone credits and returned his call. They discussed settling the case and agreed to meet. Later, when they met, she was with her aunty and the appellant was with some relatives. He gave her SBD$2000.00, to settle the case which she accepted and divided among her relatives.
10. The complainant later tried to withdraw the case but was stopped by the police.

Defence case

11. The appellant elected to remain silent and did not call evidence.
12. The appellant raised the defence of consent. His case was that the complainant was a consenting party, thus sexual intercourse was consensual.

Grounds of appeal

13. There are three grounds of appeal, which can be summarized as follows:
    • (i) The learned primary judge erred in law in not allowing the defence counsel to put the defence case to the prosecution witnesses, especially the complainant in cross-examination.
    • (ii) The learned primary judge erred in law in failing to properly consider the evidence and correctly apply the criminal standard of proof.
    • (iii) The finding of the appellant guilty of raping the complainant was against the evidence and the weight of the evidence.
14. The appellant seeks following orders:
    • (i) That conviction be quashed.
    • (ii) That sentence be set aside
    • (iii) No order be made for a re-trial
    • (iv) Such other orders as the Court deems fit.

Submissions
Submissions by the appellant
Ground 1

15. The first ground of appeal is based on the primary judge’s alleged interventions during cross-examination of prosecution witnesses, especially the complainant by counsel for the appellant.
16. Mr. Alasia of counsel for the appellant submits that he was prevented from putting the defence case to the prosecution witnesses, especially the complainant by the primary judge’s frequent interventions during cross-examination. Mr. Alasia cited several occasions when such interventions occurred. First such intervention occurred during cross-examination of the complainant. Following exchanges between counsel and the primary judge show this.
    • Mr. Alasia: Court pleases my Lord.
    • Q. I further put to you that when George asked you for sex
    • you then told him that there is an empty room at the
    • Honiara Hotel where the two of you....
    • Judge: Counsel, I think I wouldn’t allow you to go that far. That is the evidence that your client will have to give if he wishes. Because hem look olsem umi follom nomoa story nomoa olsem ia. We are wasting time. We came in just before going up to two O'clock and now it is going up to five o’clock.
    • Mr. Alasia: My Lord I....
    • Judge: I just allow you to continue with your cross examination.
    • Mr. Alasia: Court pleases.
    • Judge: It looks like we are going unnecessary now. Can you- the – the allegation is that he raped her in the truck. And the definition and the requirement of rape is there. That is the thing you have to prove. You don’t have to prove what is going on around there. What is the conversation and all these things? Because it will not assist you much with the evidence of the offence. Can you concentrate on that please?
    • And when they have sex – I will not allow you to do more this thing ...
    • Mr. Alasia: My Lord, for the Court record I am putting my case to this witness.
    • Judge: Yes, that is right. But me no allowem you more for go
    • ahead for follom this things. Ia? That is the evidence.
    • Mr. Alasia: My Lord, if that is the Courts direction then we will
    • move on.
    • Judge: So can you just reassess your method of presenting cross examination. Hem look olsem you wastem a lot of time for this one.
    • Mr. Alasia: Court pleases.
    • Q. Julia I suggest to you that what you told us in Court this
    • morning and this afternoon was not true?
    • Ans: No.
    • No.
    • My Lord, I do not have any other questions.
    • Judge: Yes thank you counsel.
    • Can we have a re-examination in this matter? We have to finish this witness.
    • Thank you counsel.
17. It is submitted that the primary judge in these interventions also breached s. 10 (2) (e) of the Constitution, which provides among others, that every person charged with a criminal offence must be provided with facilities to examine in person or by his legal representative witnesses called by the prosecution before the court.
18. It is also submitted that the primary judge's interventions were improper because the questions put to the complainant were proper and relevant. The primary judge could only intervene if the questions were irrelevant, improper, misleading, harassing or humiliating and so on, as provided under s. 66 (1) (a) (b) and (c) of the Evidence Act, 2009. Notably, sub-section (2) (a) of this section provides that a question which challenges the truthfulness of the witness’s story or the consistency of a statement by the witness, must not to be disallowed. Mr. Alasia cited following cases in support of his arguments, viz; Mechanical & General Inventions Co. & Lebwess v. Austin & the Austin Motor Co. [1935] A.C 346; Murdock v. Taylor [1965] 49 Cr. App R 119; [1965] A.C 574 and R. Funderburk [1990] 90 Cr. App R 466. These cases emphasize the importance of cross-examination as a tool to test the accuracy and the truthfulness of the story of the witness being cross-examined. In Murdock v. Taylor (supra), Lord Donovan said the only thing that should limit cross-examination is “relevance”. The other case relied upon by the appellant is Wakely & Bartling v. R [1990] HCA 23; 64 ALJR 321. That case stands for the proposition that it is the duty of counsel to put questions to a witness which are warranted by counsel's instructions and the court should allow some leeway to counsel in cross-examination.
19. It is further submitted that the interventions by the judge breached the rule in Brown v. Dunn [1894] ER 67 (HL) The case of Ganga v. The State [1994] PNGLR 323 was also cited. The latter case adopted and expounded the rule in Brown v. Dunn, which stands for the proposition that before the truthfulness and credibility of a witness’s story can be challenged, the witness must be given an opportunity to deny, explain and or elaborate on the issue while still giving evidence. The rule in Brown v. Dunn ensures and underscores the significance of fairness and proper dispensation of justice in the trial process. It is submitted that the interventions by the primary judge not only prevented counsel from putting his questions to the complainant, but it also resulted in a denial of a fair trial to the appellant, and they amounted to error of law.

Ground 2

20. It is submitted that the learned primary judge failed to properly apply the criminal standard of proof. Mr Alasia relies on the part of the primary judge's decision on verdict where the judge said:
    • "I noted the submissions by the defence, however the accused agreed to have sexual intercourse in the taxi, do not provide evidence to support his arguments that the complainant consented, no prosecution witness stated that complainant came out from the taxi naked. The demeanors (sic.) of the witness was calm and reasonable in answering or responding questions (sic.) at the cross-examination". (Our underlining)
21. Mr Alasia submits that the burden of proof rested with the prosecution throughout to prove the case against the appellant beyond reasonable doubt. It is submitted that the learned primary judge erred in law in finding that the offence was proved beyond reasonable doubt because the judge failed to address his mind to the evidence that was before him which should have created doubts in his mind regarding the guilt of the appellant of the offence charged.

Ground 3

22. Under this ground Mr. Alasia submits that the finding of guilt against the appellant was not supported by the evidence that was before the learned primary judge. The finding was therefore against the evidence and the weight of the evidence.
23. It is submitted that the prosecution witnesses contradicted each other on the material aspects of their evidence which should have given rise to serious doubts in the primary judge’s mind regarding the credibility of their evidence. For example, the complainant said it rained on the day, but she was walking to Honiara Hotel when she met the appellant cleaning his taxi. The appellant was also standing outside the taxi. This should have immediately begged the question whether it was raining that day as claimed by the complainant. This went to the credibility of the complainant. Her claim that it rained that day was contradicted by one of the other prosecution witnesses who said the day was cloudy but was a fine day. The complainant also said, after being raped in the taxi she got her clothes and “jumped” out of the taxi “naked” and got dressed "outside". All the prosecution witnesses contradicted her on this, they said she was fully clothed when she was calling for help. They only saw her trying to adjust her tights to wear it properly. The complainant also told one of the other prosecution witnesses that she never saw the appellant before the incident, but in cross-examination she said she knew the appellant because he used to work for her uncle. She also told the same witness that the appellant only tried to rape her, she said a passer-by knocked on the taxi door and opened it and she got out of the taxi. But she told the others that appellant had sex with her, another inconsistency in her evidence. She told the primary court that she "laid still” during sexual intercourse because she had asthma. She said she struggled and banged on the door of the taxi after the appellant finished having sex with her. She saw him cleaning himself with a rag. It is submitted that these conflicting stories were more than enough to create serious doubts in the judge's mind.

Submission in response by the respondent
Ground 1

24. Counsel for the respondent agrees that the judge did intervene, but the interventions were proper and warranted. It is submitted that counsel for the appellant was given full opportunity by the primary judge to put the defence case to the complainant and other prosecution witnesses. It is submitted that interventions by the primary judge related to questions which were already put to the complainant, thus the questions were repetitions. It is submitted that the appellant was convicted after the judge carefully weighed all the evidence.
25. It is also submitted that the judge's interventions were not excessive to the extent that they could create apprehended bias. Counsel placed reliance on Natei v. R [2013] SBCA 14; SICA CRAC 01 of 2013 (8 November 2013), in which the Court said:
    • "Any judge is entitled to ask questions of a witness. In any trial it will almost inevitably be necessary occasionally to clarify an answer from a witness. It may be necessary to ask a series of questions. Any fair-minded observer will see the reason for such questions and will accept that they are asked to assist the judge in understanding the case properly and conducting a fair trial.
    • However, should the interventions become too frequent or appear to be taking over counsel's role they may be interpreted by the parties or an observer as demonstrating partiality by the judge. Every judge knows that counsel is acting under his lay client's instructions and must put the case according to those instructions and frequent interruptions may lead counsel and possibly also his client to feel that the judge does not agree with counsel's conduct of the case or may disturb his train of thought sufficiently to hinder the manner in which he conducts his case." (Our underlining).
26. The decision in Natei is relied upon by the respondent because the Court in that case considered the interventions by the primary judge and concluded that the interventions or the conduct of the primary judge were incapable of being seen by an independent third-party observer as constituting a real possibility of bias.
27. Counsel for the respondent also placed reliance on Galea v. Galea [1990] 19 NSWLR 267. That case considered whether excessive questioning or inappropriate comments by the primary judge created a danger of an unfair trial. The Court said, if that happened the trial had to be set aside. In laying down the tests on the types of questions and comments by a primary judge which may create a real danger of an unfair trial, the Court said:
    • "The test to be applied in is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so the judgement must be set aside....
    • Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and into the perils of self-persuasion. The decision on whether the point of unfairness been reached must be made in the context of the whole trial and in the light of the number, length, terms, and circumstances of the interventions. It is important to draw distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion.
    • The judge does not know what is in counsel's brief and the strength of cross examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions." (Our underlining).
28. ^{Counsel for the respondent also relied on} Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55, for the contention that a primary judge has wide and unlimited discretionary power regarding conduct of proceedings before him. Furthermore, the types of interventions by a primary judge in a criminal trial depend on the surrounding circumstances that led to those interventions. In this case it is submitted that counsel for the appellant did not frame his questions properly and cross-examination was excessive.
29. It is submitted that interventions by the primary judge were fair and proper and were incapable of amounting to real possibility of bias. Thus, it is submitted that the first ground of appeal should be dismissed.

Ground 2

30. This ground relates to the claim by the appellant that the primary judge failed to consider the evidence and properly apply the appropriate standard of proof, viz; proof beyond reasonable doubt. It is not disputed by the respondent that onus was on it to prove beyond reasonable doubt that the complainant did not consent to sexual intercourse.
31. Counsel for the respondent submits that the primary judge was fully aware of the law and applied the law correctly. He reminded himself of the required standard of proof and in finding the appellant guilty, he expressly said that he was satisfied beyond reasonable doubt that the appellant committed rape on the complainant. It is also submitted that the learned primary judge correctly summarized the elements of the offence of rape before finding the appellant guilty. It is submitted that there was no dispute about the identification of the appellant and the complainant recognized him because he used to work for her uncle.
32. Counsel further submits that the appellant did not dispute sexual intercourse and the appellant knew that the complainant did not consent to sexual intercourse as shown by the evidence given by the complainant. It is submitted that there was credible evidence upon which the learned primary judge could be satisfied beyond reasonable doubt that the appellant committed the offence charged. Thus, it is submitted that this ground should also be dismissed.

Ground 3

33. This ground is related to the second ground of appeal. The question is whether there was credible evidence upon which the appellant could be safely convicted. It is submitted that there was credible evidence which pointed to the guilt of the appellant. The evidence was properly considered and weighed by the primary judge before finding the appellant guilty. Thus, this ground should also be dismissed.

Consideration

34. We are indebted to counsel for their helpful submissions on the relevant principles of law. Both submissions are equally forceful, thus the outcome of this appeal will depend on how the law is applied to the facts and circumstances of the case. The case must of course be decided on its own merits.
35. This Court must thoroughly consider the principles which counsel relied on. The issue raised by the appellant in the first ground of appeal relates to the interventions by the primary judge, mainly during cross-examination by counsel for the appellant of prosecution witnesses, in particular the complainant. Counsel for the appellant submits that he was prevented from putting the appellant's case to the prosecution witnesses by the primary judge's interventions, which counsel submits were excessive and improper. The question then is - What effect did the interventions have on the trial? In answering this question, the nature of interventions and the circumstances in which they were made are relevant factors which the Court must consider.
36. We find, what Lord Denning MR, said in Jones v. National Coal Board (supra) apposite to the question we have posed above, and we reproduce the relevant part of what his Lordship said:
    • "...Now, it cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness's evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness's evidence can be properly tested, and it loses much of its effectiveness in counsel's hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examination counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return. Mr. Gardiner submitted that the extent of the judge's interruptions was such that Mr. Mars-Jones was unduly hampered in his task of probing and testing the evidence which the defendants' witnesses gave. We are reluctantly constrained to hold that this submission is well founded. It appears to us that the interventions by the judge while Mr. Mars-Jones was cross-examining went far beyond what was required to enable the judge to follow the witnesses' evidence and on occasion took the form of initiating discussions with counsel on question of law; further, and all too frequently, the judge interrupted in the middle of a witness's answer to a question, or even before the witness had started to answer at all. In our view it is at least possible that the constant interruptions to which Mr. Mars-Jones was subjected from the bench may well have prevented him from eliciting from the defendants' witnesses answers which would have been helpful to the plaintiff's case, and correspondingly damaging to that of the defendants". (Our underling)
37. In that case the court also said a judge must make wise interventions and follow the points advocates made and assess their worth and at the end to make up his mind where the truth lay. If he went beyond this, he dropped the mantle of a judge and assumed the robe of the advocate...“Patience and gravity of hearing is an essential part of justice; and -an over-speaking judge is no well-tuned cymbal". The Court said the judge should not cloud his mind with conflict. (Our underling).

Decision

38. Applying these principles in addressing the first ground of appeal, we find the interventions by the primary judge did affect the appellant’s trial. Counsel for the appellant has cited a series of interventions, but besides those cited by counsel there were other prolonged interventions by the primary judge during cross-examination of the complainant. It is important to note that the interventions were not by the primary judge asking questions to the complainant (witness), but by the judge telling the cross-examining counsel what questions to ask or not to ask, telling counsel to rephrase his questions before being answered by the complainant, without the primary judge giving his reasons for the intervention and even stopping counsel from asking certain questions. For example, there is evidence that in one intervention, the judge stopped counsel from asking the complainant about her claim that it did not rain on the day of the incident. This was critical because the other prosecution witness said it did not rain. The question was relevant to the credibility of the complainant. In another intervention, the judge stopped counsel from asking the complainant whether while in the taxi with the appellant she told the appellant that there was an empty room in Honiara Hotel which two of them could use, but before counsel could complete the question the judge told counsel that the question should be put to the appellant. There were other instances when the judge stopped counsel from asking certain questions to the complainant.
39. Given the nature of the interventions, this case is quite different from the cases we have cited, in those cases the interventions were the primary judges putting questions to witnesses. In this case, the interventions were against the cross-examining counsel thus essentially amounting to the primary judge controlling the cross-examination of a witness.
40. There were other interventions by the primary judge in which there were prolonged exchanges between counsel and the judge and in all those interventions, the witnesses either gave delayed answers or did not answer the questions at all. Counsel was in most instances, not allowed to finish what he wanted to ask or say, either to the witnesses or to the judge. In all those instances, no objections were raised against the questions by the prosecuting counsel.
41. In our view counsel for the appellant was severely disadvantaged when he was prevented by frequent interventions by the primary judge from putting certain questions to the complainant. Those interventions also affected the questions put to the rest of the prosecution witnesses in cross-examination and indeed the rest of the trial. As a result, the appellant was not allowed to put his case to the prosecution witnesses, especially the complainant the direct effect of which was the appellant was not given a fair trial. In our view, the interventions clouded the primary judge's mind from properly and objectively assessing the evidence to decide where the truth lay. The conflicting stories given by the prosecution witnesses were not addressed by the primary judge and no reasons were given for accepting the complainant’s story that she did not consent for the appellant to have sexual intercourse with her.
42. The interventions were such that they could also amount to a real possibility of apprehended bias against the primary judge.
43. We are therefore satisfied that the appellant has demonstrated clear errors of both fact and law in the judge's conduct of the trial and his decision to convict the appellant of raping the complainant. The finding was against the evidence and the weight of the evidence. Thus, the conviction was unsafe and unreasonable resulting in the miscarriage of justice. We therefore allow the first ground of appeal.
44. The appeal having been allowed under the first ground of appeal, the second and third grounds are otiose and unnecessary for determination.
45. In the result the appeal is allowed, conviction is quashed, and sentence set aside.
46. We are of the view that given our findings and the agreement reached between the complainant and the appellant to settle this case which resulted in the complainant receiving cash compensation of SBD$2000, 00 from the appellant which she has already used and her subsequent attempts to withdraw the case against the appellant, we see no good purpose in ordering a re-trial. We further note that eight years have passed since this allegation arose and sending the matter for a further trial would necessarily involve witness talking of matter more than ten years old.
47. Therefore, pursuant to the powers conferred upon this Court under s. 23 (1) of the Court of Appeal Act, Chapter 6, we direct that acquittal be entered against the appellant.
48. Order accordingly.

Goldsbrough P
Hansen JA
Gavara-Nanu JA