R v Lutu [1986] SBHC 16; [1985-1986] SILR 249 (23 October 1986)

1985-1986 SILR 249

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 37 of 1986

R

v

LUTU

High Court of Solomon Islands
(Ward C.J.)
Criminal Case No. 37 of 1986

23 October 1986 at Honiara
Judgment 23 October 1986

Rape - consent - evidence - whether case to answer

Facts:

At the close of the prosecution’s evidence the defence submitted that there was no case to answer. The complainant testified that she cried, told the accused she did not want to have sexual intercourse with him and struggled when he appeared and climbed on top of her. On cross examination, however, while still maintaining that there was no consent, she admitted that she cried because she was angry at the two men for planning between themselves to have intercourse with her, that she had had intercourse with both of them willingly in the past and that had the accused been the first one that day or had he come on another day she would not have minded.

Held:

1. On a submission of no case to answer, discrepancies between witnesses or the credibility of the evidence will not be evaluated; that evaluation comes at the close of the evidence as a whole. If the prosecution’s evidence could result in a conviction, the accused must be put to his defence.

2. Where, however, the evidence is so little or so unconvincing that it is insufficient to convict even if uncontradicted by the defence, the accused should not be required to make a defence.

3. In the instant case, the evidence was not sufficient to convict.

Accordingly, the case was dismissed and the accused was acquitted.

No cases considered.

Thomas Kama for Regina
Andrew Radclyffe for the Accused.

Ward CJ: The defence have made a submission of no case to answer on the basis that the evidence is such that, taken at its highest, a jury properly directed could not properly convict.

The evidence consists of the complainant, one witness as to a recent complaint and the accused’s admission in a statement to a police officer.

That evidence reveals a case as regards the sexual intercourse but defence counsel bases his submission on the evidence of lack of consent.

The complainant stated in her evidence-in-chief more than once that she cried when the accused appeared and lay on her. She told the court she once told him she did not want sexual intercourse and that at one time she struggled.

In cross examination she modified that account although she did not resile from the fact that she had not consented. She stated that she got angry because she believed the two men had planned this between them. It was because she was angry that she cried. She agreed that she had sexual intercourse willingly with both in the past and that had this accused been the first one that day or had he come on a different day she would not have minded him having sexual intercourse with her.

The accused admitted the sexual intercourse to the police but in terms that suggest consent.

The recent complaint to PW2 as stated by the complainant was that both boys had done something bad although the actual words were recounted as “had sexual intercourse” by Julio. She never complained of rape nor did she try to distinguish one from the other. That complaint certainly shows anger and distress at the boy’s conduct but the feeling as expressed to Julio could equally have arisen from consensual intercourse as from rape.

Whilst her complaint shows anger at having been fooled by the two men, it does not assist in assessing the consistency of her complaint of rape.

In this case I am the judge both of fact and law. As such my duty to decide whether a case has been made out sufficiently to require the accused to make a defence under section 196 goes further than that of a judge sitting with a jury.

Thus if at the close of the prosecution case I, as judge of fact, do not feel that there is sufficient evidence even at that stage on which I could convict, I should stop the case.

I feel that the words in section 196 that where “it appears to the court that a case is not made out sufficiently to require (the accused) to make a defence” suggest that, where the tribunal is judge of fact as well as law, it is entitled to consider the sufficiency of the evidence at the close of the prosecution case.

Clearly this is not the time to evaluate such matters as discrepancies between witnesses, or which parts of the evidence are credible and accurate and which are not. These are all matters for the conclusion of the evidence as a whole and, where there is evidence that could result in a conviction by the court, then the accused must be put to his defence.

Where, however, there is some evidence but it is so little or unconvincing that it is insufficient even if uncontradicted by the defence to make a conviction possible, the court should not require the accused to make a defence.

In this case, whilst I accept there is some evidence against the accused, I have to say that, as it stands now, it is not sufficient to persuade me that I could possibly convict.

Accordingly, I must dismiss the case and acquit the accused.