Regina v Abusae - Judgment [1999] SBHC 82; HC-CRC 028 of 1995 (27 August 1999)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 28 of 1995

REGINA

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High Court Cof Solomon Islands

Before : PALMER J.

Criminal Case Number: 28 of 1995

Hearing: 13/2/96, 16/, 16/2/96, 22/2/96, 17/5/96, 20/8/99.

Judgment: 27/8/99.

Francis Mwanesalu (DPP) for the Crown

Patrick Lavery (Public Solicitor) for the Accused.

PALMER J.: The accWillie Abusae, was charged rged with two very serious offences in our Penal Code; (i) that of burglary contrary to section 292(a) of the Penal Code [now section 299(a) of the 1996 Revised Edition] and (ii) rape contrary to section 129 of the Penal Code [now section 136 of the Revised Edition 1996]. Both offences related to the same incident which occurred on the night of the 19th August 1995 when it was alleged the accused broke into the dwelling house of Satoko Hamasaki ("the victim") and had unlawful sexual intercourse with her without her consent.

The case for prosecutests heavily on two crucial pieces of evidence; the fingerprint evidence and the confessional statement of the accused. The defence on the other hand consisted essentially of a denial of the events that happened that night; that the accused was nowhere near the vicinity of the crime that night.

The victim was unable to recognise her assa and so her evidence is confined to an account of the events that happened that night. The reason for this being that the light in her room had been turned off by her prior to going to bed. She was not able to recognise her attacker therefore when he assaulted and raped her. Also it would seem she was too terrified to be able to identify her attacker, and so no attempts were even made in court to make any such identification. The victim also pointed out the light in the corridor outside her room had been turned off by someone, most likely by her assailant, as she recalled she had left it on when she retired to bed that night.

Earlier that night the victim had a small party with some of her ds and retired at about 11:t 11:30 pm. The next thing she recalled was waking up with someone on top of her; the reasons obviously becoming clear very quickly. She was naturally terrified by this, being alone in the house (a raised three bedroom house) and a foreigner who had voluntarily come to do volunteer work in the country. She tried to struggle with her assailant but realised he was too strong. In the process she got assaulted. Her descriptions of the assault and injuries sustained are consistent with the medical report taken three days later on 22^nd August 1995 (see Exhibit 5). She confirmed without challenge that she was raped twice by the assailant before managing to escape when her assailant decided to go to the kitchen.

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The fingerprint evidence in this matter is quite significant. It cond of the prints uplifted fred from one of the louvres removed from the kitchen window to the said house which it was believed the intruder had gained entry by. The evidence of PW3, Police Officer Charles Fox Lemoa, on this has been virtually unchallenged. There is little doubt in my mind about the authenticity and genuiness of the prints and their accuracy as obtained from the scene of the crime without being contaminated in any way. The prints uplifted have been submitted as evidence to this court as Exhibit 2. Those prints were then enlarged and photographed, and comparisons made with other finger prints kept in the Criminal Record Office.

PW4, Walford Devi, gave evidence as an expert wi on fingerprints. He identified a match on the left meft middle finger of the records of prints kept in the Criminal Record Office belonging to the accused. A copy of the prints of the accused as recorded and numbered CRO 14096 has been submitted as evidence and marked Exhibit 4.

PW4 identified sixteen separate identical points, consistent wie English practice, on both both prints and had these marked (see Exhibit 3). PW4 was strenuously cross-examined in the witness stand by learned Counsel for the accused as to the accuracy of his comparison but without little success. This witness remained firm in his view that the prints were a match and that the uplifted print could only have belonged to the person identified as Willy Abusae, the accused in this case. I too have had opportunity to examine the points identified by this witness as providing a match and come to the clear conclusion that the evidence of this witness can be relied on as proving beyond reasonable doubt that the uplifted prints belonged to this accused. I accept some of the points referred to were not as clear as one might have desired. However as an expert witness and one who is familiar with such evidence I am prepared to accept that his word can be relied on. There were nevertheless more than sufficient points identified which were quite clear and distinct. I accept the evidence of this witness as accurate and correct and to be relied on.

The second crucial piece of evidence which I have opportunity to consider in detail as well is the confessional statement of the accused. A voir dire had been held in which the admissibility of that statement was challenged on the grounds that the statement had been obtained through the use of force and by oppressive conduct. This Court dismissed the challenge of the Defendant with full reasons given in the ruling of 22nd February 1996. Learned Counsel for the accused has asked the Court to view carefully the statement of the accused before exercising its discretion whether to rely on it or not. I have heeded learned counsels submissions in this matter but even after doing so, I still I'm not satisfied the discretion should be exercised in favour of the accused. The facts as described in the caution statement all have a clear ring of truth in them. They are all consistent with the description of events as related to the Court by the victim. The victim had described how she had woken up to find her assailant on top of her. The statement of the accused confirms this incident. He described how he had found her fast asleep on the bed and then climbed on top of her as she woke up. The victim also described how she had struggled with her assailant, was punched on the face, and had her neck strangled. These were all confirmed by the accused in his statement. The victim described how she had been raped twice; once in the bedroom she slept in and the second time in the third bed room (see layout of plan in Exhibit 6). This is also confirmed in the confession of the accused in which he stated he raped the victim twice; once in the bed room where the victim was sleeping and the second time in the bed room nearest the bath room (which is the third bed room as described in Exhibit 6). In my respectful view, the confessional statement could only have come from the lips of a man who had first hand knowledge of the events which occurred that particular night. The description of events I find to be very specific, concise, clear and consistent throughout. For instance, Gregson Angisia PW6 described how on the night of the crime he and other officers had gone straight to the victim's house after being told about the offence and had seen a foot print on the gas stove and the fridge door open. These were all mentioned in the statement of the accused. I am satisfied the confessional statement can be relied on as accurate and containing the truth.

When this statement and the fingerprint evidence are put together, they form a formidable front against the mere denial of the accused. No satisfactory explanation had been offered by the accused as to how his fingerprint came to be found on one of the louvres removed at the point of entry into the house where the accused was sleeping. He had also failed to account for his movements on the night of the offence. He was arrested the very next day of the offence, on the 20th August 1995 and therefore his movements the previous night being the night the offences were committed would have been very fresh in his mind and he would have been able to give a very clear account as to where he was that night. Unfortunately he has not been able to give any satisfactory account and explanation for his movements. When asked repeatedly in very clear and simple terms by the learned Director of Public Prosecutions, he simply referred repeatedly to what happened to him on the night of his arrest. With respect I find his explanations hollow, unimpressive, and evasive and his mannerisms and demeanour also unimpressive. I simply do not believe his explanations and reject them.

I am satisfied Prosecution had discharged the onus imposed upon them by law against this accused on the charges of burglary and rape. I am satisfied the person who broke and entered the dwelling house of Satoko Hamasaki on the night of the 19th August 1995 and had unlawful sexual intercourse with her, was none other than this accused, Willie Abusae. I find him guilty of those two offences and convict him accordingly of both offences. He has a right of appeal to the Court of Appeal if he disagrees.

THE COURT