Regina v Molanisau [1988] SBHC 13; HCSI-CRC 21 of 1988 (16 August 1988)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 21 of 1988

REGINA

V

MOLANISAU

High Court of Solomon Islands
(Ward C. J.)

Criminal Case No, 21 of 1988

Hearing: 16August 1988
Judgment: 16August 1988
Sentence: 16August 1988

WARD C J: This accused is charged with rape of Doris Takapuru on 1st January 1988.

The facts generally are not in dispute.

She and the accused live in different villages but have been boy and girl friend for a long time - something between a year and two years. During that time they used to meet in the bush and have had sexual intercourse on a number of occasions.

Just before January this year the complainant had written a letter to the accused to say that as she had heard he had another girlfriend. She wanted him to give her up so she could look for another boyfriend.

On the 1st January, they were both in another village, Suena, to celebrate the feast of St Alban and they met in the evening by the kitchen to the girl’s uncle’s house. By that time the accused had consumed a considerable quantity of beer.

Eventually, they were alone the time apparently being about 8.00 pm. They discussed the letter and then the accused asked for sexual intercourse. The girl agreed and they went into a more enclosed room in the kitchen and lay on a seat.

Before they had sexual intercourse proper, the accused sucked the girl’s vagina - an act for which she was willing. However, he then bit her and hurt her. It is only then that the accounts diverge.

The complainant says that she immediately pushed his head away, got to her feet and started to leave. As she reached outside, he took her by the right arm, pulled her back and pushed her onto a bed in that room. He then had sexual intercourse. She left, went to the house and slept without waking the girl with whom she shared the room. Next day she told two women but in each case, only after they commented on the fact she was not walking normally.

The accused says that when he bit her, she said it hurt and he stopped, got up and helped her up. After a short while he asked if she had any pain and she said only a little. At that stage they had sexual intercourse and she was willing. Later he was seen by the police and gave the same account.

The girl was seen on the 3rd January and still had considerable pain from a bruised swelling on the right labia majora.

Thus the issue for the court is whether or not there was consent by the girl or whether the accused reasonably believed she consented. Lack of consent must be proved by the prosecution and this is always more difficult where consent has been given and then withdrawn during the sexual acts.

In this case, the girl clearly stated it hurt and got up. Bearing in mind the injuries she was seen to have later, it seems unlikely she would want sexual intercourse thereafter.

However, I am not satisfied to the required standard that there was lack of consent. Equally I am satisfied that the accused did believe, on reasonable grounds, that she was willing.

He is acquitted of rape.

However, I am entitled under section 166 CPC to convict him of indecent assault contrary to 133(1) of P. C.

The medical evidence of the injury shows that this was a serious bite. There is no doubt in my mind from the girl’s evidence that she did not consent and the accused. I am sure, knew that.

That was a clear case of indecent assault and he is convicted of that offence.

SENTENCE

I do not believe this requires a bind over. What I feel is appropriate is reasonable compensation for the girl.

It was a stupid act and could have caused far more serious injuries than, mercifully, it did.

$300 compensation to be paid to the girl within one month.

(F.G. R. WARD)
Chief Justice