Regina v Flyn [1998] SBHC 130; HCSI-CRC 19 of 1997 (30 October 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 19 of 1997

REGINA

-v-

JOHN FLYN

High Court of Solomon Islands
(Muria, CJ.)
Criminal Case No. 19 of 1997

Hearing: 24 June 1998
Judgment: 30 October 1998

J. Faga for Prosecution
L. Kwaiga for Accused

MURIA CJ: The accused JOHN FLYN has been charged with three counts of the offence of using an instrument to procure miscarriage, one count of working without a work permit and one count of obtaining money by false pretence. He pleaded Not Guilty to all the charges. I remind myself that the burden is on the prosecution throughout the trial to satisfy the Court of the accused’s guilt on the required criminal standard. If I have any doubt in this case such doubt must be resolved in favour of the accused.

It would be helpful if I set out the charges which the accused faces in this case and I do so hereunder.

Statement of Offence

Count 1 Using an instrument called enema to unlawfully procure miscarriage of Lovelyn Keni on or about 30 March 1997 contrary S.150 of Penal Code.

Count 2 Using an instrument called enema to unlawfully procure miscarriage of Alice Mungale on or about 30 March 1997 contrary to s.150 of Penal Code.

Count 3 Using an instrument called enema to unlawfully procure miscarriage of Susan Kiki on or about 30 March 1997.

Count 4 Working without a Work Permit contrary to S. 68(2) of the Labour Act.

Count 5 Obtaining money by false pretence from Lovelyn Keni, Alice Mungale and Susan Kiki between the 1st March 1997 and 30 April 1997.”

As I have already mentioned, the accused pleaded not guilty to all those charges. The prosecution called eight (8) witnesses. The accused gave evidence on his own behalf and called no other witnesses.

The factual background

The accused comes from Ghana. He came to Solomon Islands in 1989. He said that his profession is that of an agriculturist specialising in cocoa industry. He was first employed by Johnnie Iro Funding Company (JIFCO) which he left sometimes later. He then helped to establish a company called South Pacific Cocoa Products. Since leaving employment with JIFCO, the accused had not been issued with work permit until the present.

The accused established an office in upper floor of John Tom & Sons Building next to Westpac Bank in Honiara. He operated from that office for almost eight (8) years now claiming to be conducting research in herbal medicine and giving advice on project proposals.

The accused is said to have been married to one Concie, a woman from North Malaita. The veracity of that marriage has not been contested by the prosecution or is it a matter of concern to Court in this case.

The case for the Prosecution

The case for the prosecution is that the accused had used an instrument called enema to procure miscarriage upon three victims who are named in the charges. It is alleged that each of the victims went to the accused’s office and each paid the accused the sum of $20.00 consultation fee and $600.00 for his service. Each of the victims would be asked to go to the bathroom in the accused’s Office and would be told to remove all her clothes, to lay down on a plastic and a pillow on the floor in the bathroom. He would tell them to open their legs and then he would insert his fingers into their vaginas. Thereafter he would insert a rubber tube which was connected to a white plastic container into their vaginas. The container contained hot liquid substance which was injected into the victims’ vaginas through the tube. The flow of the hot liquid substance into the victims’ vaginas was controlled by a valve attached to the tube. He would inject the whole contents of the plastic jug into the victims’ bodies.

Not only was the accused alleged to have injected liquid substance into the victims’ vaginas, but that he also injected liquid substance into their anuses through the use of a tube also. The substance injected into the anus was described as yellowish substance. After inserting the tube and injecting the yellowish liquid substance into victims’ anuses, he would tell the to go to the toilet.

The treatment administered by the accused on the victims did not work. The victims delivered their babies, although one of them delivered her baby dead. The victims are said to have paid money to the accused upon a presence that he would help them abort their babies. They have never recovered their money from the accused.

As to the breach of the Labour Act, the prosecution contended that the accused did not have a work permit. As such the accused had been working in Solomon Islands without a valid work permit.

The defence case

The case for the defence is that the accused had never done any of the things alleged by the victims. He denied attending to the victims in his Office and performing the acts mentioned by the victims. He denied receiving any money from the victims. He said the Government had not given him work permit although he paid for it. The accused stated that the instrument referred to by the victims was used by himself to alleviate his bowel problem because he always experienced constipation since coming to Solomon Islands.

He contended that there has been a mission by the authorities to get rid of him from the Country and so the whole case was to achieve that. In this regard, he contended that the first victim whom he agreed actually came to his office was on a “mission” to obtain information about him.

Facts established on evidence

The evidence in this trial was heard over a period of many months because of the non-availability of witnesses at times or non-availability of defence counsel at times as well as the non-attendance of the accused at times also. Nevertheless, the evidence as presented does present in the mind of the Court a fair picture of what transpired in this case. Having considered the evidence before the Court, I find the following facts established: That the accuse is from Ghana; That the accused set up a business office and operated from that office in the upper floor of the old John Tom & Sons Building, Point Cruz; That he rendered services to people by way of advice on project proposals; That he had no work permit since he left the employment of JIFCO; That during the period alleged in the charges, the accused had in his possession the said enema, the instrument described by the victims; and that the said instrument was in the accused’s office where it was used. Those matters are established on the facts presented to the Court.

Findings by the Court on the evidence.

The three victims gave evidence in respect of the three charges of using instrument to procure miscarriage. They each gave an account of their attending to the accused’s office and on what the accused did to them while they were in his office. Their accounts of what took place were detailed. These include their initial coming to the office and enquiring about the possibility of aborting their babies, the payments of consultation fees of $20.00 and the $600.0 for service, the use of the enema on their bodies in the accused’s bathroom, the description of the substances contained in the instrument and the manner in which the accused dealt with each one of them. The evidence on those matters were largely uncontroverted except for the accused’s general denial that he had done nothing to the girls as alleged.

I have considered the evidence of the victims and other prosecution witnesses regarding what the accused was alleged to have done to the victims and I do not find any reason to doubt what they told the Court. I have considered the demeanor of the victims and although they appeared to be not as articulate as the accused, I am satisfied they were forthright in their accounts of what the accused had done to them. They were not agents of the Immigration Department as suggested by the accused. There was no evidence to even support any such suggestion nor was their any evidence to the accused’s suggestion that the police were also collaborating with the victims resulting in the victims not being arrested and charged for seeking abortion. Whether the victims should be charged for an offence (if any) in respect of what happened is a matter for the police and the DPP and not for this court to decide that. We are here conceived with the offences with which the accused has been charged.

The evidence against the considered those evidence, I find that each of the victims had gone to the accused’s office on the dates and times they stated. I find the accused had assured the victims that he would help them abort their babies and that the accused had asked each of them to pay $20.00 consultation fee and a further $600.00 for his service to be rendered which amounts had been paid and received by the accused. It is also clearly established on the evidence and I so find that the accused used the enema instrument on each of the victims vaginas and anuses in the manner described by each of them. Not only that the accused used the said instrument, but I found that he also used his fingers to insert into the victims’ vaginas.

Intent

There is clearly evidence to establish and I have so found that the accused used the instrument namely, enema, on the victims in this case. However, the prosecution must prove intent to procure a miscarriage. This must be done on the evidence before the Court. Positive proof of intent is often not possible but it can be implied from the proven overt acts of the accused.

Here we have, as facts found by the Court, the victims enquiring with the accused if he could help them abort their babies and the accused indicating that he could help them. This followed by the accused asking for $20.00 consultation fee plus $600.00 per service. The monies had been paid to the accused. The accused then proceeded to examine the victims followed by the use of the enema instrument on their private parts. He inserted a tube into their vaginas and injected a hot liquid substance into their vaginas. The victims felt the heat of the liquid substance in their bodies. This followed by inserting a tube into their anuses and injecting a yellowish liquid into their rectum. Each of the victims was pregnant. Why else did the accused injected a hot liquid substance into and up the vaginas of these pregnant victims? The most obvious inference is that this was an act calculated to produce the destruction of the child in each of the victims. I am satisfied so that I am sure that there is no other plausible explanation for the action of the accused.

On the evidence before the Court, I am satisfied that the accused intended to procure a miscarriage upon each of the victims. Two of the victims delivered their babies alive while one of them delivered her baby dead. Whether miscarriage in fact procured or not is immaterial or that the substance administered the accused was likely to produce a miscarriage or not. The fact is that he intended to procure a miscarriage and that he used an instrument as stated in the charge See R -v- Cramp, [1880] UKLawRpKQB 17; 5 QBD 307; R -v- Spicer (1955) 39 Cr. App. R. 189.

Finding of Guilty

The evidence supporting the charges of using instrument to Procure Miscarriage is overwhelming. The accused attempted to provide an innocent explanation on the use of the enema as a means of relieving him of his constipatory problem. It might well be. It does not provide with any sensible explanation as to why he had to use the instrument on their vaginas and injected hot liquid up into their vaginas. I do not accept the accused’s evidence at all on this.

I bear in mind the need for corroboration in a case such as this and the danger of convicting the accused in the absence of such corroboration. In this case I feel there is corroboration in respect of Alice Mungale’s evidence. That corroboration comes from the evidence of PW5 (Alice’s auntie) who accompanied Alice to the accused’s office and PW1 (Alice’s employer) who confronted the accused on the phone after Alice reported to him of what the accused did to her. He also took Alice to the accused’s Office, although he did not go into the accused’s office, to ask for her money back. He then took Alice to the Police to report the matter. The accused himself agreed that Alice went to his office, although he put it as she being on a mission.

As to the other two victims, there may not be any direct corroboration to their evidence. However I do not think it is necessary that their evidence be corroborated in every particular detail of what they said. It is sufficient if some independent evidence is given which connects the accused to the offence committed. In this regard, it must be noted that in his evidence the accused said he met the other two victims at the Hot Bread Kitchen. In her evidence in chief Susan Kili said that she met the accused at Hot Bread Kitchen. In cross-examination she confirmed that and said that she used to tell stories with the accused when he went to the Hot Bread Kitchen. She described in details the instrument which the accused used on her in his office. That was the same instrument which the accused did not deny that he had it in his office. The victim gave evidence that the accused inserted a tube connected to the same instrument into her rectum. The accused confirmed that such was the use of the said instrument, to help alleviate bowel problem. The accused only denied using the instrument on the victim’s vagina. But I do not think that it matters, since the victim’s evidence in this case is, in my judgment, capable of being corroborated by the accused’s evidence.

Even if I am wrong on this, I can still convict on the uncorroborated evidence of the victims provided I am satisfied of the truth of her evidence. In this case I am satisfied beyond any doubt whatsoever of the truth of the victim’s evidence. As to the evidence of Lovelyn Keni, the comments I made with regard to Susan Kili also apply. I accept the evidence of these two victims as the truth. I have no reason to doubt the truth of their evidence. I can convict on their uncorroborated evidence as I am satisfied that what they told the Court is the truth.

I am satisfied on the evidence also that the prosecution has rebutted the accused’s explanation of his innocent use of the instrument. The burden is on the prosecution and they have discharged that duty.

I am satisfied beyond reasonable doubt of the guilt of the accused in this case. I find him guilty on the three counts of Using Instrument to Procure Miscarriage and I convict him.

Charge of Obtaining Money by False Presence

The prosecution must show that the accused intended to defraud the victims in this case when he obtained the money from them. The evidence here is that the victims had each gave $620.00 to the accused. No receipts had been issued by the accused. Despite no receipts had been shown, as I have already said earlier, I am satisfied so that I am sure that on the evidence, the victims had each paid the accused $620.00. In view of the unlawfulness of his actions, which he knew very well both against the criminal law and labour law, it is hardly surprising that no receipts had been issued for the monies paid to him by the victims.

On the evidence, the intention of the accused as I have already found was to procure a miscarriage upon each of the victims. The evidence does not support the contention that he intended to defraud the victims. The accused received the monies and used the instrument on the pregnant victims, injecting substances into their vaginas and rectum. Those facts support the intent which the accused had, that is, to cause miscarriage and not to defraud. The fact that no miscarriage actually occurred did not mean that the accused intended to defraud the victims.

On the charge of Obtaining Money by False Pretence, I find the accused not guilty and I acquit him of that charge.

Charge of Working without a Work Permit

The evidence on this court came from David Toifai who stated that the accused last had a work permit when he worked with JIFCO and that after leaving the employment of JIFCO, the accused was never issued with a work permit until the present time. The accused did not dispute that he has not had a work permit up to now. He however asserted that he paid for the work permit but the Labour Department failed to give him a work permit.

The question is: Was he working between 15 march, 1997 and 30 April 1997? If he was, then as he had no work permit, he would, being a non-indigenous, be in breach of the Labour Act. The evidence on his charge is brief but I am satisfied that, it is uncontroverted.

The accused himself confirmed he set up an office in the upper floor of the old John Tom & Sons building where people came to him and were assisted by way of advice on project proposals. From that office, the accused also carried out research on local herbal medicine. It was also from that office that he carried out the work of helping the victims to procure miscarriage for which he was paid a total of $1,860. His office was fitted with modern office equipment and he had been operating from that office up until his arrest. The evidence does not show that the accused was an idle person doing nothing since he left the employment of JIFCO. More particularly, during the period stated in the charges, the accused was performing something of a clinical operation upon the victims and for which he was paid money. That cannot be anything else but work.

On the evidence before the Court in this case, I am satisfied that the accused had worked without a work permit during the period stated in the charge. I therefore find him guilty and he is convicted.

The order of the Court is that the accused is guilty on counts 1, 2, 3 & 4. He is acquitted on Count 5.

(GJB Muria)
CHIEF JUSTICE