R v Gere [1981] SBHC 6; [1980-1981] SILR 145 (22 May 1981)

[1980-1981] SILR 145

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 1 of 1981

R.

-v-

GERE

High Court of Solomon Islands
(Daly C J)
Criminal Case No.1 of 1981

22nd May 1981

Rape - complainant - supporting evidence desirable approach to be adopted.

Facts:

The accused was charged with rape against a girl of 16 years. He pleaded not guilty and alleged consent. Evidence was given that the accused made a statement to a police officer containing admissions.

Held:

In cases of a sexual nature it is dangerous to convict on the testimony of a complainant in the absence of supporting evidence. However if after considering this warning most carefully the court is completely sure that the complainant is telling the truth it may convict on the evidence of the complainant alone.

In this case the statement made was capable of supporting the complainant and did support her evidence.
The accused was convicted.

For Crown: L. Holt D.P.P.
For accused: A. Radclyffe

Daly CJ: In this case Johnson GERE is accused of rape contrary to section 129 of the Penal Code the allegation being that on 31 Oct. 1980 between Matariu and Aekafo Villages near Honiara he had unlawful sexual intercourse with Joan TOTARI without her consent. The accused has pleaded Not Guilty.

Before I turn to the details the allegation I must remind myself of two important matters of law. The first is that the burden of proof of all the elements of the charge is on the prosecution. Before I can convict the accused the prosecution must make me sure that he is guilty. The second is that this is a complaint of a sexual nature made by a 16 year old girl. I must therefore give myself a strong warning of the dangers of convicting an accused on the testimony of such a complainant in the absence of what I prefer to call supporting evidence. That is evidence from a source independent of the complainant which supports her account as to the matters in dispute. I must look very carefully for such evidence. However even if I find there is no such supporting evidence if, after considering the warning I have given myself most carefully, I am completely sure that the complainant is telling the truth then I may nevertheless convict on her evidence alone. I will say something later in this judgment about evidence capable of being supporting evidence in this sense.

In this case the prosecution have set out to prove the offence of rape. This involves establishing first that the accused had sexual intercourse with the complainant on the night in question. That fact is not disputed. The accused admits the full act of intercourse. But it must also be proved that this intercourse was without the consent of the complainant and that the accused was aware that the complainant was not consenting when he had intercourse with her. There lies the dispute as the accused’s case is that the complainant freely consented to the intercourse. The prosecution case is that she was forced to have intercourse both physically and by threat with a knife. I should add that, if the prosecution case is the correct one, no-one could doubt that the accused had the necessary knowledge that the complainant was not consenting. So the question is, have the prosecution made me sure that Joan TOTARI did not consent to intercourse with Johnson GERE on the night of 31 Oct. 1980?

I turn now to the facts of this case. Johnson GERE (GERE) is a man of 29 years married to Asneth WATARII (PW1). They live at Matariu Village. Asneth had been married before and had children by her previous husband. One of the children was a daughter Joan TOTARI (PW2), (JOAN) the complainant who is now aged 16 years and another daughter JANET MAEASIA (JANET) who is younger than JOAN. JOAN despite her young age is also married and has been for some time. At sometime last year her husband came to Rove Prison in Honiara and for the first time JOAN left her home in Malaita and came to Honiara to be close to her husband.

She stayed with her mother and GERE at Matariu at first. For about a month all was well. Then what is called the first incident took place. It was about a week before 31t Oct. 1980. JOAN on this night was sleeping alone in her room. Her evidence was that a man opened the door of that room and came in at which she shouted out. The man was GERE. Her mother said she woke at the shout and on going out of her room she saw GERE (her husband) standing there. Asneth accused him of being the intruder. The accused got angry and said to her that she was jealous. GERE gives a very different version of this incident. He says that he did go into JOAN’s room that night but that this was by prearrangement with JOAN and that indeed JOAN has sent JANET out of the room so that she and GERE, her stepfather, could have intercourse. GERE said intercourse took place and then, for some reason it is difficult to understand, JOAN shouted out while still in her room, followed GERE out when he left and told her mother what had happened.

This incident is important as if the accused is believed this was the start of a friendly sexual relationship between himself and JOAN which would put anything that happened later in a very different light to that placed upon it by the prosecution. I must therefore consider the incident carefully. The first matter is that on this incident I have independent evidence from the mother about what happened after GERE’s visit to JOAN’s room. GERE accepted that his wife was witness of truth who had no motive for lying. She impressed me as a forthright witness. I am sure she was telling the truth. That being so I do not believe that the girl said anything to her mother about having intercourse with GERE. She acted just as a girl would into whose room a man had intruded. The account given by GERE just does not ring true. I rejected it. I find that no sexual relations took place as alleged by GERE on that night. I am sure JOAN is telling the truth about this incident.

Following the 1st incident JOAN was sent to live at AEKAFO with an uncle and aunt, as her mother said, because of the trouble GERE had done with the girl. However JOAN and JANET went with GERE and their mother to Point Cruz wharf on 31 Oct. 1980 and returned at night somewhere in the region of 10.00 or 11.00 pm to Matariu.

At this stage it is clear that JOAN was anxious to go to AEKAFO to pass on some family news to her uncle. AEKAFO has been estimated as being about a mile away by the hilly bush road actually used. GERE was, at least at first, reluctant to accompany JOAN who was going with JANET but eventually did go with the two girls taking a bush knife (Exh. B) with him. He said he remained reluctant but JOAN forced him to go. How exactly this forcing took place is difficult to understand as on his own version JOAN left first and GERE followed when asked to do so by JANET. When pressed GERE finally put it down to the drink he had consumed earlier. Again there was a dispute about who chose the bush road instead of the main road which also went to AEKAFO. GERE said it was JOAN who boldly set off on this path alone in the dark forcing the others to follow her. JOAN said that both girls wanted to go on the main road but it was GERE who said they must follow the bush road. Bearing in mind the age of JOAN, her familiarity with the area and the fact that she was with her stepfather who was armed for their protection, I cannot believe that she would or indeed could “force” GERE to take any route he had no wish to take. On these issues too I am sure the evidence of JOAN is the truth.

This case arises from what happened on the way to AEKAFO. The prosecution case is that when the bush road reached some gardens GERE invented a story about seeing someone or a devil to stop the girls. He threatened the girls with the bush knife he was carrying, dragged JOAN into the garden and by virtue of physical force and reiterated threats to kill her with the bush knife forced her to the ground, removed her underclothing and had full intercourse with her. The struggles of JOAN to resist were unsuccessful as were her attempts to cry for help. During the time this was going on a terrified JANET was somewhere close in the bush.

The defence case is that JOAN permitted herself to be led off into the garden, undressed herself and had intercourse with GERE while JANET remained on the path with the bush knife. The accused did remember in cross-examination that he had omitted to mention, despite being given the opportunity to do so twice, to tell the court that he did in fact threaten the girls with the knife after the intercourse to stop them telling anyone about it. He said this was because he did not want more talk about himself and JOAN.

It is about this dispute that I should look for evidence capable of supporting JOAN. There is in this case some evidence. That is the statement Exhibit C which the Crown says was made to Detective Constable TONAWANE by the accused on 1st November 1980 the day after the 2nd incident. That statement, if it contained the words of the accused, read as a whole, is in my view an admission that JOAN was not consenting. There is an admission of a threat with the knife before intercourse and of the use of physical force. GERE however says the words are not his despite the fact he signed the statement. (One signature out of four, indeed, he says was not his. Presumably it is a forgery and, and far as one can see, an excellent one perpetrated for no very good reason). His case is that this statement is a fabrication of D/C TONAWANE who threw away his real statement which contained what he is now saying in evidence. As it only became apparent in court that these serious allegations were being made when the accused gave evidence we did not have the assistance of D/C TONAWANE’s replies to the allegation. All I can say is that the way the accused gave his account of how Exhibit C came to be signed by him was unconvincing. It was also most unconvincing as an account having any basis other than an endeavour to retract admissions made by him. On this issue I am sure Exhibit C was a statement properly and fully recorded from the accused. As such it is capable of being evidence in support of JOAN. I find as a fact that it does support JOAN.

On the main issue as to consent I have to assess the credibility of JOAN and GERE as witnesses. As far as the latter is concerned I have already expressed views on his credibility on certain issues. Throughout GERE was a most unimpressive witness even allowing for the strain placed upon a man in his position. The only course open to me is to find that I reject the evidence he gave as to the main issue.

I still must consider whether I believe JOAN, the complainant, as it remains necessary for the prosecution to establish guilt. For a young woman also under a position of great strain and faced with strong but fair cross-examination she was most impressive. When one adds to that that there is supporting evidence in Exhibit C of her account of events then this court concludes that it is sure that the account given by JOAN TOTARI of the events on the journey from Matariu to Aekafo is the truth. I have considered the points made by counsel for the defence as to recent complaint, lack of evidence of distress and the neutrality of the Doctors report (Exhibit A) but they do not raise any doubt in my mind to the salient fact that I am completely sure that JOAN told the truth. I should add that even were there no supporting evidence, and bearing in mind the dangers of so doing, I would convict in this case on her evidence alone.

FINDING: JOHNSON GERE is Guilty of Rape contrary to section 129 of the Penal Code as charged.