Regina v Mani [1994] SBHC 85; HCSI-CRC 49 of 1993 (24 November 1994)

CRC 49 93 HC

IN HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 49 of 1993

REGINA

-V-

SIMON MANI

High Court of Solomon Islands
(Palmer J.)

Criminal Case No. 49 of 1993

Hearing: 1 November 1994
Judgment: 24 November 1994

J. Faga for Plaintiff
M. Samuels (Mrs.) for the Defendant

PALMER J: The accused, Simon Mani has been charged with the offence of rape contrary to section 129 of the Penal Code, that he on the 15th day of February, 1992, at Fonoadala, Malaita Province, did have unlawful sexual intercourse with Hellen Tagona without her consent.

The act of sexual intercourse is not denied. What is denied is the element of lack of consent. The defence raised is that the victim and the accused were boy and girl friends, and that sexual intercourse was willingly entered into by the victim.

The prosecution case is that the victim was accosted at her garden when she had gone to the surrounding bushes to get a bush rope to tie her bag of potato with, and forced to have sexual intercourse against her will. The crucial evidence of the prosecution was provided by the victim herself. There are few things that should be pointed out right from the beginning about the demeanour and mannerisms of this witness. At the beginning of her examination in chief, this witness would look at the accused and then sort of smile. She did this two or three times and was quite noticeable.

This witness also started off answering questions in a flowing manner in pidgin, but then as the questions from the learned prosecutor became more pointed, she became un-cooperative. Her un-cooperativeness became obvious when she was asked the question, “Were you friends with Simon Mani before?” No answer was given. The prosecutor then asked, “Did you and Simon used to meet and tell stories in the past?” Again, no answer. The prosecutor then continued,
“Did you and Simon used to walk around together before that day at the garden?” Again, no answer. The prosecutor again asked, “Did you and Simon would tell stories together and walk together?” Again, there was no answer. The court also asked the witness if she understood the question or not, and to indicate if she did not understand. The court also explained the question to the witness in pidgin, but there was no response. The prosecutor was then advised to go on to other questions and then come back to the same questions asked if he so wished. There was some progress when other questions were asked but then the same unresponsiveness surfaced. It was then suggested, that she be provided with an interpreter. It was only after the short adjournment and with an interpreter provided that she became co-operative and willing to answer questions.

The first time that this witness said she saw Simon was when she walked past his house at Kwaitaba village. She saw him sitting alone in front of the verandah of his house. The next time she saw him was when he called out to her in the bushes near where she had gone to get a rope to tie her bag with.

In her examination in chief, she estimated the distance from the spot where she left her bag of kumara to the place where she went to get the rope, to be from the court-room to the main road, (some thirty to forty metres away). She also stated that that spot was bushy. It is important to bear this description of the place where the alleged rape occurred, and contrast it with the description of the same spot by the prosecution witness, Winfred Angimanae.

The victim stated that the accused called her name and asked her to go and hear something from him. She responded by asking, what it was she should go for. He insisted that she should go, but she refused, and it was at this point that he came and held her. She stated that she tried to run away, but he held her tightly around the waist. He told her not to shout or he would kill her. Then he threw her down, but she got up. He threw her down again and sat on her. He then took off his trousers and inserted two of his fingers into her vagina. He then raped her.

She stated in chief that she told the accused that she did not want to have sex with him because he was not her friend. She said that she cried when the accused had sex with her, and that it was painful and her vagina bled as a result. She also stated that her skirt was torn during the struggle.

After the accused left, she got up and saw the witness Winfred Angimanae, and showed her clothes to her which had blood on it. After that, she went home. She denied seeing that witness at the garden. She stated twice that after the accused had raped her she saw Winfred Angimanae, and then went home. However, later in her evidence in chief, she stated that when the accused held her, she saw Winfred Angimanae with another small girl. She stated that she could not speak with Winfred because the Accused held her mouth shut.

Under cross-examination she was asked who she first reported the incident to. In response she said that it was Muriel Rarangia, at her village. When she was asked however, “when did you see Winfred”, she replied that she showed her clothes first to Winfred and then later she told Muriel.

When she was asked if Winfred was the first person to know about what happened, she stated that she showed her clothes to her, but did not tell her that the accused had raped her. She was then asked, if that was so, then why bother showing the clothes to her. In response, she said that Winfred was the first one she told about what Simon did to her, and that Muriel, was the first one at the village to know.

The second prosecution witness was Anna Roboi, the woman who accompanied the victim as they walked past the accused’s house on their way to their respective gardens. The significance to be attached to her evidence is minimal. All it confirms is that the victim did walk to the garden with her. However, it is clear that this witness was walking slightly ahead of the victim and therefore could not see anything that may have been done by the victim behind her. The accused stated that the victim signalled to him with her hand to follow her.

The third prosecution witness is Winfred Angimanae. In her evidence in chief, she stated that she saw the accused holding the victim’s mouth and sitting on top of her. She said that they were not far from her, about 8-10 metres away. She said that the victim saw her, and then she went away. Later on however, she said that she saw the accused holding the victim’s hand and mouth and then laid her down, and sat on top of her. Towards the end of her examination in chief, she added that she saw the accused struggling with the victim. It was at this point that she went away.

Under cross-examination this witness pointed out that she was standing on the road and the victim and the accused were about 7-8 metres away at the victim’s garden. When she was asked whether they were in the bushes or in the garden, she stated that it was at the side of the bush near the garden. She pointed out that there were bushes around that place but they were not thick bushes and she could see through them.

When she was asked how she knew that they were there, she stated that she could see them where they were sitting. She was then asked if she saw them sitting down. She answered that she saw them when she walked past. It is important to understand this line of questioning by the learned Counsel for the accused within the context in which they were asked. This line of questioning, had been undertaken to put to the witness that the accused and the victim were sitting down together and talking before moving further away into the bushes to have sexual intercourse, showing that they were friends.

Further on in her cross-examination, she stated that she only saw them when the accused was sitting on top of the victim holding her mouth to prevent her from shouting. This is to be contrasted with what she earlier on stated that she saw the accused hold the victim’s hand and mouth and made her lie down. Her description of the scene of the rape is also to be contrasted with the evidence of the victim herself in which she stated that that scene was in the bushes.

It is to be noted that this witness when pressed further under cross-examination, changed her version again to say that she saw the accused holding the victim before getting her to lie down.

One further inconsistency in the evidence of this witness as compared with the evidence of the victim is that she denied ever seeing or talking with the victim after the incident at the garden. She denied ever being shown the skirt stained with blood.

The next prosecution witness was Muriel Rarangia. She was the next girl whom the victim alleges was shown the stained skirt. This witness did confirm that when she saw the victim she was crying. She said that the body of the victim was covered with grass and dirt. Her skirt was torn also. She stated that the victim looked sad when she was talking with her. When asked by Mrs. Samuels if the victim was crying because she was frightened of her uncle, Andrew Firiato, she replied in the affirmative.

The final prosecution witness was the police officer who carried out the investigation into this case and attended the scene of the alleged offence. He stated that the spot from where the alleged rape was committed could be seen from the road, but if people were lying down, then it would be difficult to see them.

One of the crucial issues before this court is whether there was an established relationship between the victim and the accused right up to the incident at the victim’s garden.

The accused gave evidence under oath that he had met the victim on two other occasions. This was supported by his witness. Both the accused and his witness testified in court that the accused had met the victim on two separate occasions prior to this incident. In his evidence in chief, the accused also stated that shortly after the court hearing in which the victim had given her evidence, the accused met the victim at the market and asked her why she did not speak the truth in court. She then replied that she had been forced by her uncle, Andrew Firiato, to say those things she had said in court. She then gave him her chain and a custom shell money neck lace. The chain was exhibited in court.

As a result of new evidence adduced in court by the accused which seek to challenge the credibility of the victim, the prosecution was given leave by the court to have the victim re-called in rebuttal to the accused’s allegations.

Again the evidence of the victim was given in an un-impressive manner. It can only be described as like extracting a sore tooth. When she was again asked in chief if she had an established relationship with the accused, there was the usual long silence, before the answer was given that she did not have any relationship with the accused. She denied giving any chain to the accused.

Under cross-examination, she was shown the chain alleged to have been given to the accused. At first she denied recognition of the chain. Later, she says that the chain belonged to a girl from the Western Province. She said that she wore a chain with a tag to court on that day. She however returned the chain in the evening to her girl-friend when she returned to her house at CDC. When asked about the chain, she identified it as the one she got from her girl-friend. She then later denied that that was the chain. In cross-examination a tag was produced as the tag to the chain which had been earlier tendered in evidence by Mrs. Samuels.

The victim was then asked if she still liked the accused. There was the usual long silence before she replied, “I did not want to marry him. I do not like him anymore”.

It was then put to the victim again by Mrs. Samuels if the necklace in court was the one given to the accused. Her answer was, “That’s it”. She was then asked how it got to the accused. She replied, “If I gave it to him, I would know”.

I have gone to some length in assessing the evidence of the witnesses, in particular the evidence of the prosecution witnesses. I have in so doing highlighted the inconsistencies which I consider to be material in the question of which witnesses evidence and which part of their evidence is acceptable and to be believed.

As pointed out earlier on, the victim I find to be un-impressive as a witness. She gave the impression of being a reserved and shy witness, but only insofar as the questions were pointed and directly implicate a boy-girl friend relationship with the accused. On other questions, she answered quite freely.

The crucial inconsistencies I find to be as follows:-

(i) The evidence of the victim in which she stated that she was held around the waist and thrown to the ground, but then later saying that he also held her mouth at the same time.

(ii) The victim stating in chief that she did not see Winfred Angimanae at the time of the alleged rape, but then later saying that she did see Winfred when the accused held her. It is also to be noted that it was at this point of time that the victim first mentioned that the accused also held her mouth shut and therefore she could not shout for help.

(iii) The victim stated in cross-examination that she reported the incident first to Muriel Rarangia. Later on in cross-examination, she stated that she reported the incident first to Winfred, before reporting to Muriel at the village. Winfred however denied ever talking to the victim after she had seen them near the bushes in the garden. It is unusual that the victim should be confused as to who she first reported the incident to, unless it is because she is trying to hide the truth and therefore is confused about which version to tell the court about. In rape cases, the state of appearance of the victim as seen by the first person is vitally important. If the incident was first reported to Winfred, then her evidence would be of vital interest to this court. Her appearance at such a time would be so vivid and clear in the mind of Winfred that I find it quite strange that she stated in court very clearly that she did not see the victim after the alleged rape had taken place. Either Winfred is lying or that no alleged rape did take place and that the victim is crying rape to placate her uncle about her actions; which in custom naturally were un-acceptable. Perhaps, the victim never addressed her mind fully to the significance that such witness’s evidence can be in corroborating her own evidence. I consider this inconsistency to be one of the more significant ones.

(iv) There is also confusion in the evidence of Winfred as to what she actually saw happen between the accused and the victim. At first she says she saw them only when the accused was on top of the victim. She then says that she saw the accused holding the victim’s hand and mouth and then forcing her to lie down. Then she went away. However, earlier on, she stated that she saw the accused holding the victim’s mouth while he was on top of her, and then she went away.

(v) Under cross-examination, the above witness stated that she saw the accused and the victim sitting down near the bushes at the victim’s garden. She then later said that they were struggling and that she saw them when the accused was on top of the victim.

(vi) In the evidence of the victim she stated that she went to the bushes near her garden to get a rope to tie her bag with. That spot she says is bushy and about the distance from the court-room to the main road (about 50 metres). Winfred however, stated that it was at the garden near some bushes. She says that she could see them quite clearly where they were.

(vii) In the evidence of the witness Muriel Rarangia, she stated that when she saw the victim she looked sad, and was crying. However, under cross-examination, when it was put to her that the victim was crying because she was frightened of her uncle, she answered in the affirmative. This witness did say that the victim’s body was covered with grass and that there was blood on her dress and that it was torn. This witness denied going to have her bath together that evening with the victim. However, the witness Anna Roboi stated that she saw the victim going to have her bath together with Muriel Rarangia and that she did not notice anything unusual about the state of the dress or skirt of the victim.

(viii) Finally we have the evidence introduced by the accused about the silver chain and tag given to him by the victim. Having observed the victim giving evidence and heard her testimony, I am not convinced that she was telling the truth about that chain. It is a strange coincidence that the victim would be wearing an exactly similar chain and tag on that day in court, and that the same or similar chain and tag should be produced by the accused in court, that it was given to him by the victim.

At first the victim denied giving the chain to the accused, but then she identified it as a similar chain given to her by her girlfriend, but which she had returned. Under cross-examination she admitted that the chain produced in court was the one given to her by her girlfriend. However, she denied any knowledge of how it got to the accused.

It is my view that the victim knew how the chain got into the hands of the accused. She had stated in court that the accused does not know her girlfriend. The chain therefore could not have been given by her girlfriend. It could only have been given by herself to the accused.

There is another relevant matter raised by Mrs. Samuels which should be mentioned. This relates to the delay in the reporting of the incident to the Police. It is not in dispute that there were attempts to have the parties married and compensation to be paid. It was when those arrangements fell through some four months later that the matter was then reported to Police.

Mrs. Samuels pointed out that normally, complaints about rape would be reported soon after the incident had occurred. The delay she says must go against the version of the victim in that it is unusual to get the victim of a rape to marry her rapist. There must have been a relationship in existence between the parties and that is why there were attempts made to get them married. The marriage did not go through because the accused’s mother said that the victim was too young. In her evidence, the victim stated that she was told to marry the accused because he had spoiled her, despite the fact that she did not like the accused. I find this approach crude and simplistic.

It is highly unrealistic and most improbable that any reasonable parent or guardian in today’s enlightened society would force their daughter or child against her wishes to marry her rapist. Rather it is more probable than not that arrangements for marriage will be willingly entered into where there is some sort of boy-girl relationship.

In his evidence before this court, the accused stated that compensation is normally paid even where there is consensual sexual intercourse between the parties, according to his custom. It is therefore not unusual for compensation to be demanded in such circumstances.

The crucial question therefore before this court is whether taking all the inconsistencies raised, plus all the other factors referred to by learned Counsels in their submissions, and the courts own observations of the demeanour of the witnesses when giving evidence, can this court be satisfied beyond reasonable doubt that the accused did have unlawful sexual intercourse with the victim against her will. The answer must be no. The inconsistencies identified raise a sufficient doubt in the mind of this court as to the question of lack of consent. The inconsistencies identified point to the existence of a boy-girl friend relationship between the accused and the victim prior to and right up to the time of the alleged offence. The likely existence of that relationship was further supported by the actions made after the alleged rape to have the victim and accused married, and the subsequent actions even right up to the trial of this case between the victim and the accused. The totality of these raise a sufficient doubt to satisfy me that it would not be safe to enter a conviction, and accordingly I acquit the accused.

(Mr. Justice A. R. Palmer)
JUDGE