Regina v Iroi - Ruling [2004] SBHC 29; HC-CRC 250 of 2003 (2 April 2004)

HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 250 of 2003

REGINA

-v-

JOHN IROI

HIGH COURT OF SOLOMON ISLANDS
(KABUI, J.).

Date of Hearing: 1^st April 2004
Date of Ruling: 2^nd April 2004

R. B. Talasasa for the Crown
R. Ziza for the Accused

RULING

Kabui, J. This is a submission of no case to answer by Mr. Ziza, Counsel for the accused at the conclusion of the case for the Prosecution. The complainant gave evidence of the circumstances leading to the accused having sexual intercourse with her without her consent. She said that she went with the accused reluctantly because the accused pulled her to the side of the road and threw her down in a drain. With his hand shutting her mouth, the accused used the other hand to remove her trousers and his own and thereby had sexual intercourse with her without her consent. She said she tried to struggle to get up but was unable to do so because the accused was stronger and bigger than her. She said the accused pushed his penis into her vagina and moved up and down and she felt the accused ejaculated. She said the accused was doing it fast. Upon arrival of her relatives, the accused pulled up his trousers and ran away. When asked by one of the complainant’s relatives, the accused identified himself as John Iroi. He was later identified at the Kukum Police Station after his arrest. The accused’s hat and a pair of slippers belonging to the complainant were later found at the scene. The photographs taken of the scene the same night of the incident clearly show the grass being long grass having been disturbed to the extent that the grass was down as though weight had been placed upon them. This fact was confirmed by Inspector Balaga, PW9, when he visited the scene the same night the incident happened. The complainant cried upon the arrival of her relatives at the scene and was taken away by Joyce Mouli, PW5. The matter was reported to the Police the same night the incident happened and the accused arrested thereafter. The record of interview (Exhibit 1) clearly connects the accused with the complaint made against him by the complainant. There is therefore evidence against the accused to put him on his defence. The question of credibility of the complainant and the other Prosecution witnesses is a matter to be assessed and decided later after the accused concludes his case. At page 1062 of Lord Lane, CJ’s judgment in R. v. Galbraith [1981] 2 All E.R. 1060, His Lordship said-

“...Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury...”

This statement was subsequently affirmed by Dunn, L.J. in R. v. Olugboja [1981] EWCA Crim 2; [1981] 3 All E.R. 443 at 449. Borderline cases may well of course arise from time to time. Having said that, the position in this jurisdiction is that Iam sitting both as a judge and jury in this case and substituting myself for the jury, I do say that whilst the question of the reliability of the complainant’s evidence may well determine the guilt of the accused that should best be left to me to decide after hearing what the accused has to say in his defence. See R. v. Lutu [1985/86] SILR 249 and R. v. Maenadi Watson, Smith Pitapio, Youngston Watson and Saro Norman, Criminal Case No. 16 of 1997 (unreported) although I would substitute section 269 for section 198 of the Criminal Procedure Code “the CPC” in each case. There is also the effect of section 159(2) of the CPC which allows the court to convict the accused of a lesser offence on the evidence before the court and section 160 thereof which likewise allows the court to convict the accused for the offence of attempt although the accused was not charged with attempt. The accused does have a case to answer in this case. The application is refused.

F.O. Kabui
Puisne Judge