Regina v Ngengete [1997] SBHC 80; HC-CRC 008 of 1997 (21 November 1997)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 8 of 1997

REGINA

-V-

GEORGE NGENGETE

High Court of Solomon Islands
(Palmer J.)

Hearing: 10 - 12 November, 1997
Judgment: 21st November, 1997

Director of Public Prosecutions for the Crown
S. Manetoali for the Defendant

PALMER J.: The accused has been charged with the offence of rape contrary to section 128 of the Penal Code, that on 20th August, 1996, at Aruligo Settlement, Guadalcanal Province, committed unlawful sexual intercourse with Natalyn Perogolo without her consent.

The accused entered a not guilty plea and claims in his defence that there was consensual sexual intercourse. The crucial issue for determination by this court accordingly is whether there was consent or not. It is not denied that sexual intercourse did take place at the said time. The victim admits that penetration was attained but that it was achieved through the use of force and by threats.

Prosecution evidence came from only two witnesses; the victim herself and another witness. Defence on the other hand, called a total of eight witnesses, including the accused.

The facts as established by the evidence can be summed up as follows. That on the said date, the victim and two other girls, Rosita Tambatua, and Ansa Piko had been met after school that morning (about 11.00 am) and told by the wife of the accused, Catherine Visu (referred to as "Kata" or "Katarina" in evidence) that the accused wanted to see them in his house. The three girls proceeded to their homes, changed their clothes and went to the house of the accused. According to their evidence, they went and sat underneath a bamboo tree near the house of the accused before the victim was called to go and see the accused in his house alone. Mary Veo (DW 5) states that the three girls sat at the verandah of the house whilst she and the wife of the accused sat beside the bamboo tree. Whatever the sitting positions of those people was, it is clear there were at least four people in very close proximity to the house where the alleged offence was committed. The bamboo tree is estimated at some 15-20 metres away; whilst the verandah is even closer.

It is clear on the evidence that the victim had been called separately by the accused. It is also not in dispute that sexual intercourse occurred at the said time. Prosecution however alleges that this had taken place without consent and that it had been obtained by force and through the use of threats. The threat was made at the said time when the accused sought to have sex with the victim and to the effect that he would kill her if she did not comply. Evidence was also adduced which sought to show that not far from the bed (about one and half metres away) was a big long knife (more commonly referred to as a "bushknife") and a small axe, and that the sight of these terrified the victim.

As to the amount of force used, this took the form of being roughly pushed on the shoulders to lie down on the bed and roughly pulling the skirt and trousers off the victim. In the process the victim alleges the rubber band of her trousers was torn.

Prosecution also alleges that the victim cried as a result of what the accused had done to her and that this was confirmed by the second prosecution witness who stated that she saw the victim was crying when she came out of the room and stood at the door of the house of the accused. She was still crying when this witness and Rosita were called by the accused to go to him. This witness also stated that she saw a knife and a small axe in the accused’s bedroom.

In contrast, Defence evidence was that sexual intercourse occurred with the consent of the victim. Evidence was introduced which sought to show that the accused and the victim had had previous sexual relationships and that through this familiarity they were able to have sex despite the presence of people outside the house in close proximity.

It was claimed previous sexual contact was made on 5th August, 1996, between 11.00 am - 12.00 noon at his house. On 10th August, 1996, they held each other’s private parts, and on 20th August, 1996, they again had sex. The Defence also called those other persons who were present outside the house of the accused on the said date, to show that they did not hear the victim crying or shouting for help during the time she was in the house with the accused. Also to contradict the evidence of prosecution that she was not crying when she came out of the room.

I have had the opportunity of hearing and seeing the victim give evidence in court, but with respect cannot say that I have been impressed with her evidence and the manner it was given. Her responses at times were vague, hesitative and evasive. For instance, in chief she denied having previous sexual experiences. In cross-examination when it was put to her that in her first statement she had denied having previous sexual contacts, she said yes. When she was then asked about her later statements to Police about having had previous sexual contacts, she denied that this was so. Under re-examination, when she was asked to explain this discrepancy, she replied that it was the accused who had written the names of those persons. When asked how she knew it was the accused who had written the names of those persons, she replied that it was those persons who had told her about it. Clearly a most unsatisfactory and unconvincing answer.

Defence however had called two of the persons whom it was alleged previous sexual intercourse had taken place to give evidence on oath. Both gave very clear and consistent evidence of previous sexual intercourse. Not only does this contradict directly the evidence of the victim as given on oath, but I note that her own previous statement to Police contradicts her evidence on oath. And as observed above, her explanations of the discrepancy was most unsatisfactory. This with respect did not help her credibility one bit.

I have also listened carefully to the evidence of those witnesses who were around the house at the said time. The mother and wife of the accused stated quite clearly that they did not hear any crying, screams, shouting, coming from the house where the accused and the victim were. There was virtually no indication either of any noise which might have been consistent with a struggle having taken place at the house. They also stated that the victim looked normal when she came out of the house, as the opposite to looking distressed, troubled, upset or harassed. The other witness who was also present around the area, Rosita Fiuga (Tabatua), stated as well that the victim looked happy when she came out of the house. She denied that she was crying. When it was put to her that she had made a previous statement to Police that she saw tears in the eyes of the victim, she denied having said that. I do note though that this witness in my respectful view had so contradicted herself and was very evasive that little reliance can be placed on much of her evidence. But even if that were the case, I must bear in mind the evidence of the other two witnesses and the fact that the only other prosecution witness did confirm that she did not hear any crying coming from the house, though she did say that the victim was crying when she stood at the door. Her evidence and that of the victim however must be considered in the light of all the evidence before this Court.

What is clear is that there were two different versions about the appearance of the victim when she came out of the house. The prosecution version was that she was crying, whilst the defence version denies this. Whatever it was, even if I am to accept the prosecution version that she was crying, that does not necessarily imply that sexual intercourse had occurred without her consent.

When considered in the light of other evidence, I note the following. That apart from the fact that she may have been crying, there was no other evidence to show anything was amiss. Not even her own sister, neither the mother and wife of the accused appears to have suspected that anything so drastic had occurred. If anything, it appears the victim may have concealed her emotions so well to avoid any suspicions.

I also note that no immediate report was made to any other person. There was present with the victim at the said time her sister who it seems could have been the first person to be informed about the rape or to know. She however only heard sometime later and it appears not from the mouth of the victim. There was evidence from the victim that she did tell her mother about the incident later that night when she got back home from the Market, but that has been contradicted by the Defence, which I will say more on later.

There was also virtually undisputed evidence given by the wife of the accused that after the victim came out of the house the two of them went and cooked rice together. That appears to be quite unusual. If the victim had been raped as alleged, the wife would have been able to notice that something was amiss straight-away. But even if her evidence is biased in favour of her husband, which I do not discount, still the victim’s actions in my respectful view are inconsistent with that of a rape victim. It is more common to hear of and have evidence adduced of rape victims displaying distress, shock, shame, fear, hurt, confusion and sometimes anger immediately after such an incident, bearing in mind that rape carries with it the crucial element of a drastic violation not only of a woman’s body physically but also spiritually and mentally. If we are to take into account the age of the victim, then it is indeed unusual that she appears to have been able to suppress her emotions so that no one appears to have noticed that such a drastic thing had been done immediately after. I however, must balance this with the fact that not all persons are the same, and that there are some who might very well have reacted in the same way this victim had reacted. This has to be weighed at the end of the day in the light of all the evidence before me, and it is in so doing that my comments above have been made. It is my respectful view that the actions of the victim are more consistent with that of a willing participant and where consensual intercourse had taken place.

I also take into account the evidence of Rosina Tabatua and Mare Martin, whose evidence it would seem contradicts any suggestion that the victim had personally reported the incident to her mother. Rosina Tabatua gave evidence in which she stated that it was she who had suggested to the victim’s mother to inquire about what had happened at the accused’s house, because according to her feminine observations, things did not look normal or as they should, between the accused and the victim. This appears to have been confirmed by the evidence of Mare Martin who stated that he had overheard the mother making inquiries about the incident later that day. Mare Martin’s house is located not far from the victim’s house. I have no reason to doubt the observations of those two witnesses, who gave in my respectful view a very straight-forward account of what they saw and heard.

I find the prosecution case to be quite weak and unbelievable. It was not the case where the accused and victim were both alone in the middle of nowhere with no one around to see or hear even if the victim were to call for help. There were persons within shouting distance who would definitely have heard any screams or shouts or even of any loud noises which may have indicated a struggle and something unusual going on at the house and who may have been alerted thereby and given assistance or if they had not been able to help, to run for help. One of the persons outside was her sister, Ansa, who would have been able to run for help in the village if needed. As suggested by Mr Mwanesalua to the accused, a normal person in his right mind would not have thought of having sex at such a time when his wife and mother and other girls were just outside his house within hearing distance and who may be able to hear or see and discover what was going on. Unfortunately, what he did not go on to suggest was that if that was hard enough, then it would seem to be an even more difficult proposition to suggest that the accused would have the audacity to rape the victim in such confined circumstances. It would seem much easier for the accused and victim to have consensual sexual intercourse in those circumstances than for the accused to rape the victim where the risk of discovery would have been much greater.

I find the manner of approach, the locking of the bedroom door in such restricted circumstances, the silence (nobody heard anything unusual) and the very controlled or suppressed emotions of the victim after the alleged incident, more consistent with that of a willing participant.

When all relevant factors are put together, I find it very difficult to accept prosecution’s submission that non-consensual intercourse had taken place on the said date. I am not satisfied the element of lack of consent had been proven to the required standard and accordingly I must acquit the accused.

THE COURT.