Regina v Kwaimanisi [1995] SBHC 47; HC-CRC 042 of 1994 (15 August 1995)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 42/94

REGINA

v.

PETER SADE KWAIMANISI

High Court of Solomon Islands
(Palmer J)

Hearing: 9 May 1995, 8 August 1995, 15 August 1995
Judgment:

DPP for Prosecution
B. Titiulu for Defendant

PALMER J: The accused, Peter Sade Kwaimanisi has been charged with the offence of rape, contrary to section 129 of the Penal Code, that he had unlawful sexual intercourse with Cyrene Keche by force on the 26th of March 1993.

Prosecution alleges in essence that the Complainant had been tricked by the accused into accompanying him to a secluded spot beyond the Masonic Lodge, along the Bokona Road, up a footpath to the Vavaea Ridge Road and where force was applied to the person of the Complainant to attain unlawful sexual intercourse without her consent. The accused was then led up the old Wireless Station path up to Vavaea Ridge Road, and then along that road to a turn-off which leads down towards the main market. From there, they continued westwards where a number of people were met including a policeman who eventually escorted the Complainant back to her place of work at “B Cool” hut, NPF Plaza.

The accused on the other hand agreed generally with the movements of that night as described by the Complainant but disagrees with some of the details given and denies that unlawful sexual intercourse ever took place.

It is basically agreed that the accused and the Complainant did go looking for the accused’s girlfriend that evening at around 8.00-8.30 p.m., behind the Anthony Saru Building, but when she could not be found there they walked up the Bokona Road, and then up a footpath leading off to Vavaea Ridge Road. It is not in dispute that they went as far as mid-way along the footpath leading to the Vavaea Ridge Road in search for the accused’s “girlfriend”. What is in dispute however, was how they walked along and what transpired during that time.

The Complainant says that when she went out and spoke with the accused behind the “B Cool” leaf hut, the accused took hold of her hand tightly around her wrist and never released his hold as he led her along. She says that she was not willing to go because she was still at work and was apprehensive, but the accused assured her that he was related to her as a “brother” in custom through his Dad, and that he knew her grandfather’s name. The Complainant says that she believed the assurances of the accused and went along.

In contrast, the accused denies holding the complainant’s hands and pressurising her to accompany him to go and look for his girlfriend. He says that he merely asked her to do a small job for him; which was, to go and call a girl behind the Anthony Saru Building who was sitting with some men, to come and see him. He says that the Complainant willingly agreed to go, but asked him to accompany her. So they went together, walking side by side, about ½ - 1 metre apart. There was no holding of hands. He says it was all very casual and free as they walked along, all the way to the Anthony Saru Building, then up the Bokona Road, before turning up and following the footpath which led to the Vavaea Ridge Road. He says that the Complainant was not frightened.

Another matter in dispute relates to the evidence in chief of the Complainant in which she stated that about half way up the foot path to Vavaea Ridge, the accused did something which caused her to entertain mixed thoughts. Whilst still holding onto her hand, the accused unzipped his trousers and urinated in her presence. She said this action of the accused caused her to question in her own mind, how the accused could justify his words, that he was related to her. If what the accused said was true, that he was related to the Complainant in custom, then he wouldn’t have done what he did.

In his evidence in chief, the accused was asked if he urinated in front of the Complainant at any time. In his answer, he said that he could not remember.

However, under cross-examination, he was asked if he did stop and urinate? His answer was quite interesting. He said that he was not sure, then he said, maybe, and then, that he had forgotten.

It was then suggested to him by the learned Director of Public Prosecutions if he would agree that it actually occurred because the Complainant had described it in her evidence. His answer this time was “Yes, I would agree”. Mr. Mwanesalua then pointed out to him that the Complainant had said in her evidence that he was quite close when he did it. The accused took time to consider this, before deciding again, to agree that it was correct.

This concession by the accused in open court in my view is quite significant because it goes to show or support in my view to some extent, the Complainant’s version that she was still being held on her wrist when the accused urinated. And if that version is conceded as being correct and true, then it is also more likely that what she had earlier described was also correct and true.

We then come to the crucial part of the evidence of the Complainant in which she described how the alleged rape took place. She says that about half-way up the foot-path they stopped near a large stone. At this spot the accused released his hold on her hand and then walked about three yards to look. In the album of photographs submitted as an exhibit, that spot was identified in photo “A”. She pointed out that the accused never had his back towards her when he walked out to check for the people that they had seen earlier.

At that point, she decided to try and escape. She says that she got up and ran wildly up the foot-path. But on seeing her run, the accused gave chase immediately and caught her. She described in plain, clear and detailed language, what transpired thereafter; how the accused demanded “payment” from her for having to chase her and thereby making a fool of him; but that payment was to be in the form of a sexual favour. She described clearly how her skirt was torn at the back by the accused. She also stated that she tried to lie her way out, by telling the accused that she was married. She described how in the course of the struggle she hit her knee against a stone and also injured her toe. And how the accused succeeded eventually in getting her on her backside, by kicking her calf muscles which caused her to fall backwards. She explained too that the accused broke her bra when he pulled it out of her body.

If I accept the Complainant’s version of events, then the element of lack of consent, or consent obtained by force, would have been clearly established to the required standard.

The accused’s version however, is quite different. He says that after he had checked the people that they had seen up the hill towards Vavaea Ridge, he told the Complainant that they should go back. It was when they had started to go back, that he then asked the Complainant to have sex. He says that the Complainant refused and then ran away, but fell down on some loose gravel.

He walked over to her and told her not to be frightened, but simply to tell him plainly if they could have sex. He then asked her for a second time. The Complainant then replied, that she was engaged, but he didn’t believe her. So he asked her a third time. He says that she remained quiet for sometime, and then replied that he should drop her off at her work-place after. The accused says that he took this for a consent and proceeded to remove her skirt. He undid the buttons of the skirt and then unzipped it. He denied ripping her skirt.

At this point of time I wish to raise a matter concerning the use of exhibits. It is not clear to me whether, the skirt was made available to the Police in the course of investigations. Also, the bra of the Complainant which was alleged to have been torn. If these were available, then they should have been retained and produced as relevant exhibits.

The Complainant then removed her trousers and pants. The accused says that he got her skirt and his shirt and placed them on the ground for the Complainant to lie on.

He then kissed her. At the crucial moment however, when he was about to have sex with her, his penis failed him. He says he couldn’t get an erection. When asked why he couldn’t get an erection, he says he did not know. No explanation was offered or suggested as to this sudden failure.

In cross-examination he says he placed his penis over her vagina but because it was too weak he couldn’t do anything, and so told her to put her clothes back on and told her that they could do it next time. He also said that his desire for sex evaporated at that same instant.

The crucial questions before this court are:

(i) whether unlawful sexual intercourse took place, (there must be proof to the required standard that penetration was achieved with the accused’s penis); and

(ii) that it was done without her consent, or with her consent through the use of force by means of threats or intimidation of any kind, or by fear of bodily harm.

A number of witnesses were called by prosecution whose evidence were markedly consistent with and supportive of the Complainant’s description of some of the events before, and after the alleged rape incident.

Joy Bosawai, (P.W.5) confirmed what the Complainant said about the happenings at the “B Cool”, prior to the Complainant leaving the hut, and when she returned after. She confirmed that the Complainant was working with her at the “B Cool” that evening when a boy came and told her to pass a message on to the Complainant to go and see her brother outside. This evidence is consistent with that of the Complainant.

The accused’s evidence on this point is somewhat similar. He said that he sent a boy by the name of John Kimo to go and call the Complainant to come out and see him. He did not however state what were the actual words told to John Kimo to convey to the Complainant.

If what the Complainant and this witness had said about the content of that message was true, then it was clearly a lie perpetrated by the accused simply to get the Complainant to go out, and meet the him outside. Whether it was a carefully orchestrated plan from beginning to end, I cannot say, but if the complainant’s evidence is accepted then it would appear to be so.

I do bear in mind that John Kimo was not called as a witness and therefore what he had told PW.5 would have been tantamount to hearsay and inadmissible. There is however clear and unchallenged evidence from the Complainant, that on at least two occasions, the Complainant had assured her that she was his sister. No issue on this evidence had been raised with the Complainant under cross-examination, and also with PW.5. I am satisfied therefore that I can accept their evidence as correct and true on this point. This simply means that at the outset, the accused had not been honest in his dealings with the Complainant, and goes to show to some extent, or support the view, that he had other ulterior motives for asking the Complainant to come out that evening. And if he had been dishonest right from the beginning and then conceded under cross-examination that he had urinated in the presence of the Complainant, then that does say something about his credibility.

A normal, reasonable, honest Solomon Islander who says that he is related to someone in custom, would not entertain such devious schemes, unless he had something behind his sleeve. Why didn’t he call the Complainant himself, if his motivations were innocent. Why didn’t he respect her refusal and her wish not to get involved in his plan to go and call his girl-friend. An essential ingredient in custom is respect. She had not breached any custom by refusing such petty requests (at least no evidence was adduced). So why did he impose himself on her by grabbing her hand and holding on to it tightly. I do note that the accused’s version was that he did not hold her hand at all and that she had accompanied him willingly. I will give reasons in detail later as to which of these two versions I accept as correct but at this stage it is sufficient to point out that the evidence of the Complainant and that of Joy Bosawai as to the earlier happenings, already show, that deception was at play from the beginning.

We also have his own admission in court as to his uncertainty initially, and then concession, that he had urinated in the presence of the Complainant, “his so-called sister” in custom. If what he had said was true, that she was his sister related to him through his dad, then need he be unsure about such disrespectful act? Again, a normal reasonable Solomon Islander, who holds out such claims to his “sister” in custom, would never do that, unless he was suffering from some mental disorder, or maybe heavily dulled in his senses through the use of drugs or drink, or some other reason, or maybe as in this case, he had clearly formed an intention to carry out an unlawful act, and to that extent, there was no custom, no rule or law, no principle, to deter him from his plans.

No explanation, and no reasonable excuse has been suggested as to his odd behaviour. It just doesn’t add up.

The evidence also adduced showed clearly that there was hardly any proximity in their relationship whether through blood or in custom, apart from the fact that they were both from Guadalcanal Province.

The evidence of the accused therefore must be treated with extreme caution.

Joy Bosawai’s evidence, also confirmed that the Complainant did not return until after close of business, at around 10.30-11.00 p.m. that night. She noted that when she saw the Complainant, her body appeared different. When she was asked where she had been, she just cried. She says she saw signs of fresh injuries on the shoulders and knees. She also says that she noticed that she had her skirt hung over her shoulders, and that it was torn. This witness confirmed too that the Complainant appeared very distressed. She was crying a lot, and was incoherent when she spoke. She found it quite difficult therefore to follow and understand what she was saying. The Complainant was then later dropped off at her home.

No questions were put to this witness in cross-examination, and I am satisfied that I can rely on her evidence as true and correct. She gave her evidence in a reserved, but clear manner, and I accept her evidence. I am satisfied, there is consistency in the evidence of this witness as to the distressed appearance and condition of the Complainant, and consistent generally with what one would expect in such circumstances. It is supportive on the whole of the Complainant’s version of events.

Another witness called by Prosecution, was the police officer whom the Complainant recognised as coming from the Duff Islands. This was Hubert Taukalo, P.W.4.

His evidence is slightly different in detail from that of the Complainant, but it is my view that there is some common thread running through their evidence. He says that he had earlier been informed to keep an eye out for the Complainant and the accused, and so when he saw them opposite the Air Niugini Office, he approached them. As soon as he reached them, the Complainant grabbed hold of his hand and amidst tears, pleaded with him to help her. The accused however, was holding onto her other hand, and tried to pull her away from him. There was then a pulling struggling between them, with the accused trying to pull the Complainant away from him, and the Complainant refusing to let go of his hand, and thereby pulling him in turn.

He then spoke with the accused and managed to release his hold on her hands. The accused thereafter, left them, whilst he escorted the Complainant back to the “B Cool” hut. He confirmed seeing the Complainant wearing a T-shirt, with a piece of clothe (skirt) hung over her shoulders, and wearing a pair of trousers.

He stated that he did ask the Complainant about what had happened between her and the accused, but she did not say anything.

The Complainant’s version on the other hand, is slightly different. She says that when she met this witness, the accused had already left her behind and was walking in front. She says that she cried and told this witness that the accused had not only taken her out and pulled her, but that he had also removed some money from her. That Officer then called the accused to come back and got him to give her back her money; which she put at about $90.00.

The accused’s version too is different, but more consistent with that of the Complainant.

This witness gave his evidence calmly and clearly. Either he was mistaken about the hand-pulling, or the complainant was.

It seems to me that the Complainant may have been slightly confused as to what exactly happened in her encounter with this police officer. I say this because earlier in her evidence, she had stated that she was extremely distressed, and upset about what the accused had done to her. She stated that there were a number of persons that were met as they returned to the “B Cool hut; including police officers and security officers. One of those police officers was this witness. It is quite possible that in her distressed condition she may have been confused and sincerely mistaken as to that particular encounter with this witness, and other persons that were met that evening.

I am satisfied nevertheless, beyond reasonable doubt that there was an encounter with this witness that evening. I am satisfied too that the inconsistency in their evidence is not due to the fact that one of them is telling a deliberate lie, but more of an honest mistake being committed by one of them. That inconsistency therefore is not sufficient to discredit the evidence of either witness to the extent of a reasonable doubt as to the credibility, accuracy and truthfulness of their accounts.

No suggestion has been put that the Complainant may have been pretending to cry when she spoke with this witness and pleaded for his help. No explanation too has been provided by the accused for the Complainant’s behaviour. If there was no force, threat or intimidation by the accused, and no rape committed, then why would the Complainant behave in such a pitiful and distressed state.

The evidence of Joy Bosawai and Hubert, (and this should also include the evidence of Catherine Vota - the Complainant’s Auntie), as to her distressed appearance and condition is quite significant when it is compared with the version of the accused as to what happened.

The accused’s version was that after failing to achieve an erection, despite the fact that the Complainant was lying there waiting for him willingly, all his sexual desires departed from him and so he told the Complainant, “next time”, and to get dressed. They then walked up the path to the Vavaea Ridge Road, and then followed it down to a side road towards the back part of the new building owned by Mr. Dettke. He says they held hands as they walked along, but when a vehicle went past, they would separate.

When they met the two girls and men opposite the traffic lights, he was completely taken aback when the Complainant suddenly acted as if she did not know, or have anything to do with him. When he was asked as to why the Complainant may have behaved in this manner, he replied that he did not know.

He then says that he grabbed hold of her hand and her shirt and puller her, and when she released her body, she fell down. He says he did this because he was shocked about her actions. After this, he left her and walked ahead.

Assuming for one moment, that this was true, would she on seeing Hubert Taukalo opposite the Air Niugini Office and the Church of Melanesia Office later cry and ask for Hubert Taukalo’s help? Would she appear distressed and unable to talk coherently and continue to cry even after she had been escorted by the police back to her work place and spoke with Joy Bosawai? If she was a consenting party to the unsuccessful attempt by the accused to have sexual intercourse with her, would she still appear distressed and crying and unable to talk? There was no one who saw them up that hill when she lied down and made herself available to the accused according to his version. If she kept quiet about it, no one would know. Why then did she behave as if she did not know him when they met the girls and the men? Was she pretending? There has been no evidence suggested to that effect. Could the reasonable explanation be founded in the simple fact that the Complainant was speaking the truth about what actually happened and the accused, lies and half-truths?

What is clear is that we have the unchallenged evidence of two very credible and relaible witnesses (Joy Bosawai and Hubert Taukalo) who confirmed the distressed appearance and condition of the accused. Their evidence is consistent with that of the Complainant but would be inconsistent with the version of the accused.

And then there is the evidence of her Auntie, Catherine Vota (PW.3), who also confirmed her evidence as to her distressed appearance, and the injuries on her knee, shoulder, leg and tongue. She also confirmed that her skirt was broken at the back part; not where the zip was.

When these reliable evidence as to her appearance and condition are pooled together, they show a picture of something totally inconsistent with the version of the accused. And in my view go to discredit much of the evidence and the version of the accused.

The witness Catherine Vota, I find to be clear, simple and forthright. It would appear that she was the first person with whom the Complainant confided in as to having been raped. And this wise lady arranged immediately to take the Complainant thereafter to the Police Station that same night to file a complaint.

One might ask why the Complainant did not raise the alarm immediately with the first persons that were met that evening or even with the police officers. The reason given by the Complainant in court was that she felt very bad and ashamed to tell them about what had happened as it would give a very bad image of her. The most that she did it seems was to plead for help and to try and get away from the accused.

It is my view, that her failure to inform the first people she met, as being insignificant. When her version of event is taken as a whole, it is in my view not only reasonable, but understandable that no mention of a rape was made to those people, even the police officers met on the road. The Complainant says she was distressed and confused and not thinking properly at that time. If the version of the Complainant is accepted, then the actions of the accused would have been a complete violation of her womanhood; in the words of Lord Lane C.J., “a violation which in effect obliterates the personality of the victim” (R. v. Billam (1986) 8.G App R.). It would only be reasonable therefore to expect her to confide in someone very close to her, such as her auntie as in this case. And with the assistance of her auntie, she was then able to report the matter to the Police formally as a complaint.

I am satisfied that the complaint was made speedily as could reasonably be expected to a person whom she could confide in (in this case her Auntie, that she was living with). I am satisfied that there was no unnecessary delay. I am also satisfied that the complaint was not elicited from the Complainant by the Auntie (Catherine Vota).

In her evidence, the Auntie (Catherine Vota) stated that the Complainant arrived at her house at about twelve mid-night. After opening the door for her, she told her that her food was at the safe. However, when the Complainant went to the safe, she started crying, so Catherine Vota asked her, what she was crying for. The Complainant then replied “Mi die”. So she asked her what the matter was. The Complainant then told her about what the accused had done to her.

This witness was not cross-examined on this evidence. I find her evidence reliable and I accept it as correct and true. I am satisfied that the complaint was made to the Auntie voluntarily and spontaneously and that it thereby confirms the testimony of the Complainant as to the alleged rape.

Catherine Vota also gave evidence that the Complainant was living with her at that time and that there was no boy-friend or man living with the Complainant in her house. Under cross-examination she was asked if the Complainant’s boyfriend was living with them at the time of the alleged rape, but she stated clearly that the boyfriend had returned to Tangarare sometime earlier as he was a teacher there. She also stated that the Complainant did not have any boyfriend at that time. This evidence is important to keep in mind when the evidence of Dr. Bisili, the doctor who carried out an examination of the Complainant is considered.

The prosecution also called Dr. Kevin Bisili, the Medical Doctor who carried out an examination on the Complainant, at the request of the Police. His findings are summed up in his report dated the 2nd of April, 1993. In his evidence on oath, Dr. Bisili confirmed that the examination was performed on the 27th March, 1993 at about 3.00 p.m., some 18 hours after the alleged incident.

As an aside, one of the matters raised by Dr. Bisili in his report was the delay in bringing the Complainant to the hospital for examination. He pointed out that it would have been more helpful to the investigations, if the victims of such offences were brought to their attention as soon as possible.

Obviously, there would be in existence at times, natural barriers and practical difficulties. However, the point raised by Dr. Bisili is noteworthy and should be borne in mind in investigative work by the Police. For instance, if a fresh complaint is lodged as in this case, and after obtaining the statement or as much facts as can be ascertained from the Complainant, the Police are of the view that a medical examination should be carried out, then in as much as it is possible, efforts should be made to have that victim examined either in the same night or first thing in the morning. Obviously no hard and fast rules can be laid down as there could be many practical factors that would affect the decision - whether an immediate examination can be done. It would also require the Co-operation of medicals doctors to be willing and able to be called out to carry out such examination at odd hours of the night.

Dr. Bisili’s report confirmed that the Complainant had a “torn frenulum of the tongue, small grazes on the temporal areas, small grazes on the left upper arm anteriorly, grazes on both left and right patella (knee caps) and grazes to her right toe”.

The medical evidence as to the injuries seen on the Complainant are significant in that they are all consistent with her descriptions on oath as to how they had been sustained. The torn frenulum of the tongue occurred she says when she attempted to shout and the accused pushed his finger inside her mouth. The other injuries on her body were sustained in the course of the struggle between them.

These injuries were also described by other witnesses. Catherine Vota confirmed seeing the tongue of the Complainant bleeding and noticed the fresh injuries on her shoulders, knees and legs. Joy Bosawai also noticed the injuries on her shoulders, knees and legs.

There has been no challenge to this evidence of these witnesses in cross-examination. Apart from a flat denial, and an assertion that the Complainant was not speaking the truth, very little evidence or explanation has been provided as to how those injuries may have been incurred. I note that in the version of the accused, he did say that the Complainant fell down over some loose gravel. There was no further evidence from him however as to how she had fallen down and whether any injuries were sustained. Unfortunately, I do not believe his version of accounts. The torn frenulum of the tongue in particular is completely devoid of any explanation or evidence as to how it could have been incurred. If it occurred when he says he kissed her on the lips, there is no evidence from him as to how the injury could have been incurred.

If she incurred an injury to her tongue when she fell on the loose gravel, then the most likely type of injury would be an accidental biting of the tongue, but definitely not a torn frenulum. Such an injury is more consistent it seems with the insertion of a foreign object into the mouth. No questions had been put to the learned doctor whether a fall, say on loose gravel would cause such an injury. No questions or suggestions too had been put to the Complainant herself that she may have incurred such an injury during a fall. The combined total of the evidence of these witnesses as to her injuries, are all consistent, and confirm the testimony of the Complainant.

In the third paragraph of the learned doctor’s report, he described his findings on the genitalia as follows:

“Examination of the genitalia revealed normal findings. There was no evidence of any injuries to the external genitalia, nor were there any injuries in the lower genital tracts. The perineum was perfectly intact, hence the anatomy of the genitalia was in good shape”.

One of the main points stressed by Mr. Titiulu, of Counsel for the accused was the absence of any evidence of injuries to the genital area. He submits that this was inconsistent with the evidence of force being applied to achieve penetration and the alleged rape.

Under cross-examination, the learned doctor stated that there was no bruising of the vagina walls. He was then asked if it was possible to conclude that that supports the view that sex actually took place but in the absence of any force, in that had force been involved that it was more likely to cause injury and that there would be evidences of bruising and injury observed. The learned doctor however replied that the only conclusion, based largely on the results of the high vaginal swab, was that there was vaginal penetration and that it could only have been achieved by the penetration of a penis inside the vagina and depositing the sperms inside. The learned doctor also stated that sperms are viable for up to three to four days, and that their presence could be detected for up to five days. Thereafter, he was unsure but did explain that it was most unlikely to be detected as they would by then have been broken down as dead products and expelled.

As to the question whether sperms deposited at the entrance or outside the vagina could find its way into the upper vagina, he stated that would be dependent on a number of factors, but on the whole it was most likely. He explained that the vagina is like a closed tunnel. Unless it is opened, spermatozoa will find it difficult to migrate through to the inside. Also it would depend on the quantity deposited on the entrance. If only a little, then the chances are almost nil. He concluded that the presence of spermatozoa in the upper vagina meant that there had been definite penetration by a penis.

There is a comment in the Report of Dr. Bisili which would seem to cast doubt as to the question of whether those sperms may have been deposited by the accused or from someone else. At paragraph (5) of his report, he states:

“The victim on further questioning revealed that she was living with her boyfriend”.

In his cross-examination the learned doctor pointed out that he understood the response of the Complainant to mean that she was living with her boyfriend at that time.

In her evidence however before this Court, the Complainant did say that she had a boyfriend but that he had returned to his place of work at Tangarare in February of that year, as he was a school teacher by profession. It was not put to her in cross-examination if there was any other boyfriend, and if she had had sex recently, prior to that incident with any other man. As stated earlier, her Auntie confirmed to some extent that there was no one else staying with the Complainant at her residence. There has been little challenge to her evidence on oath, and I am satisfied that I can accept her evidence that she had not had sex with any other man prior to that incident apart from the time(s) it would seem, when she was living with her boyfriend in February of 1993. I do not place much reliance on the comment of the learned doctor as casting any reasonable doubt to the question of a boyfriend living with the Complainant was no one else that she had had sex with during that time. Has it been established therefore that the sperms could have come from no one else but the accused?

A valid question therefore maybe asked as to how those sperms tested in the vagina swab ever got into her vagina, and by whom?

The accused says in his version that the most that he came close to was actually having his penis touch the vagina of the Complainant. He says that because it was so weak, (that is no erection was achieved), no sexual intercourse occurred. There was not even an attempt made because at that crucial moment all his sexual desires left him.

There was no mention in his evidence of any ejaculation over the vagina of the Complainant. There would therefore have been very little, if any at all, deposits of semen on the vagina of the Complainant, and hardly any could have gotten inside her vagina. There was no evidence of any penetration with his penis, according to his version. In those circumstances, as described by the accused, there is almost no possibility of any spermatozoa ever getting the opportunity to migrate up the vagina.

The medical evidence however is crystal clear. This simply meant that either the Complainant is speaking the truth and the accused lying, or vice versa, and that the Complainant had during that time had sex with another man, if not with her boyfriend.

As to the second proposition, I find it to be most improbable and unlikely. The version of the accused just doesn’t fit when weighed against all the reliable and credible evidence, that had been adduced by the prosecution.

I find the evidence of the accused to be fraught with inconsistencies, unsatisfactory and at times totally unreasonable explanations, mere denials, half-truths and embellishments, to give his account credibility. Unfortunately, the prosecution evidence had been fairly solid; concise, consistent, compelling and credible. And I am satisfied I can rely on them and reject the version of the accused.

As to the submission raised by Mr. Titiulu that the absence of any bruising or injuries to the genitalia is more consistent with consensual sexual intercourse does not fit in with his client’s version that no intercourse took place.

Secondly, as already stated, no evidence has been produced which would cause me to entertain a reasonable doubt that those sperms tested in the vaginal swab, might have belonged to someone else. The Prosecution have clearly discharged the onus of proof through the evidence of the Complainant, which I accept, that it was deposited by the penis of the accused.

Thirdly, even if it was to be found that there was consensual sexual intercourse (which is not open to the accused to raise anyway, because his version was that no intercourse took place), I am still satisfied that any such appearances of consent were obtained through the use of force by means of intimidation.

And fourthly, this was raised by Mr. Mwanesalua, that by the time the accused had managed to get the Complainant on her back, she was so weak and helpless from having struggled so hard earlier with the accused that her body would therefore be in a sufficiently relaxed state to enable easy penetration by the accused.

Mr. Mwanesalua also pointed out that it may have been different if the Complainant had not had sex previously, and her body tense.

For the above reasons, the absence of any bruising or injuries on the genitalia of the accused must be treated with minimal significance.

There is one other piece of evidence of the Complainant which needs commenting on. In her evidence on oath, the Complainant stated that in the course of the struggle with the accused and the psychological and emotional trauma caused and confusion which ensued, she completely forgot all about her slippers, and they were left at the scene. On the following morning, in the company of some police officers that she took to the scene, they found her slippers there. No evidence has been raised to challenge what this witness stated concerning those slippers. No evidence too has been adduced to explain how those slippers might have been left there. If the version of the accused was accepted that there was no struggle and no force applied and that the Complainant was a willing participant all the way through, then it is most unlikely that she would have forgotten about her slippers and left them at the scene.

I am satisfied that the finding of those slippers on the following day is consistent with the version of the Complainant as to what had happened to her.

Taking all the relevant factors canvassed in this judgment into account, I am well satisfied that I can rely on the evidence of the prosecution witnesses as credible and true and reject the evidence of the accused. I am satisfied accordingly, to the required standard, of proof beyond reasonable doubt, that the accused had unlawful sexual intercourse with the Complainant on the 26th of March, 1993 without her consent and he is convicted of the offence of rape.

A. R. PALMER
JUDGE