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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
At Honiara
Criminal Case No. 129 of 2004
REGINA
-V-
MICHAEL ANITA AND WILFRED AKAO
Date of Hearing: 11th, 14th, 15th, 16th, 17th, March, 19th, 20th & 21st April 2005
Date of Judgment: 6th May 2005
M. McColm for the Crown
C. Baker of the Public Solicitor’s for the 1st Accused
J. Godbolt of the Public Solicitor’s for the 2nd Accused
REASONS FOR DECISION
Brown PJ: These two accused are charged with abduction, assault and rape as a result of happenings on a night late in 1996 following an incident at the Point Cruz Yacht Club. They face trial on information laid by the Director of Public Prosecutions charging:-
Count 1 - abduction contrary S.139 of the Penal Code in that they took away one Elizabeth Entriken against her will with intent to have sexual intercourse and in the alternative abduction contrary to S.250, with intent to cause her to be secretly and wrongfully confined.
As well:
Counts 3 & 4 - Common Assault of Elizabeth Entriken.
Count 5 - Common Assault of one Bruce Murray.
Counts 6, 7 & 8 - Rape by Michael Anita of the said Elizabeth Entriken.
These offences were alleged to have happened at some time before Christmas 1996, for the Public Prosecutor (Crown) was unable to fix a date with any accuracy although alleging that the offences occurred in that calendar year. That course is available to the Crown but it does illustrate the difficulty the court must face with recollections dulled by distance.
The Crown’s case was put by Mr. McColm in his opening statement,
"These counts relate to an evening December 1996. On that night complainant and husband Joseph went to Yacht Club - visiting Honiara - normally reside at Lola Resort - operate business jointly. Visited club - met friends - both accused there during the night; the complainant spoke to Michael Anita a brother in-law. Later at 9:00pm she went to female toilets with Naomi Tozaka. After she came from toilet Michael Anita approached her, took hold of her, and dragged her from the club towards a white sedan parked opposite entrance of club near a chain wire fence. Attempted to force her into car, she resisted. At that time Wilfred Akao was in driver’s seat. There a 3rd person Bruce Murray intervened - he formed view she didn’t want to go - tried to prevent complainant being forced into car. Michael Anita punched Bruce Murray. Eventually she was forced into car, and car driven away. She did not want to go with men.
She received punches to her body and head by accused Michael Anita. She passed out.
Her being taken away relates to count 1 & 2.
Murray punched twice. Her being punched in car - count 3. (Akao driver at that time).
Anticipate she will say she came to some time later, Akao driving, she was in back with Anita - she received further punches to head - she passed out - count 4.
She came to after, car stopped only person aware of, Michael Anita at that location she was sexually assaulted - intercourse without her consent; - another 2 such incidents at different locations before being dropped off at Airport Motel, way home early hours where she met and spoke to husband Joe Entriken".
Evidence by:
1. Complainant Elizabeth Entriken.
3. & 5 two other people outside club- witnessed what went on.
When Michael Anita arrested he exercised his right to silence - 23 January 2004. Interview conducted Akao 6 March 2004. Denied being involved- said he got a lift home in Anita’s car that night.
Caution statement to be tendered.
Mrs. Entriken’s statement 11th January 2004. May be evidence late as to how she came to make that statement.
Stories given before me are such as to allow little shade of understanding. The Crown case relies on a violent abduction with the other offences happening in that milieu, the defendant Anita’s story is based on one diametrically opposed to that of the Crown. He says the complainant went with him from the club voluntarily, and after driving about Honiara, intercourse took place with the complainant’s consent. He denies the assaults, although if there was striking of Bruce Murray, it was done in defence of the complainant who sought his help.
There is implied a version that, notwithstanding the complainant’s assertion against him on that initial Crown assertion, (that the complainant was taken against her will) perhaps he had reasonable grounds for believing otherwise, for the violence, if it could be so called, was directed other then at the woman but was between the two men, and if there is doubt, then, over the initiating cause of the violence (Anita says it emanated from Murray) then equally those witnesses of the Crown who point to Mr. Anita as the cause, could in the melee, be just as mistaken as to the willingness of the lady to enter the vehicle. For that act followed so closely upon the scuffle with Mr. Murray as to make the fact of the woman’s feet dragging from the car door of no determinant when the court considers whether she went of her own volition or not. For the implied need to depart the place of risk (while Mr. Murray was there) justify flight, notwithstanding the fact that the ladies feet remained outside the car.
The defence goes beyond that however, and says that Mr. Anita came to the aid of the woman who was molested by Mr. Murray on the left of the car, once the complainant called "Michael help me, help me". For that is the evidence of Mr. Anita.
The defence case then is so opposed to that of the Crown, that the Crown need negate that possibility of the complainant in fact calling for Michael Anita’s aid, for even were she confused over the intentions of Murray, her cry must provide Mr. Anita with the rationale to interfere by taking the complainant from the place, and this court need be satisfied beyond doubt that the Crown negatives such inference.
The defence case asserts a series of events which go beyond then, a searching test of the reliability of the Crown case (and consequently the weight I should attach to that evidence) and proposes a completely different scenario to that sought to be proven by the Crown.
That scenario includes the approach by the complainant to Donga Buga, a club-member, who gave evidence that during the course of this evening the complainant asked him to tell Michael Anita that, after the drink, Anita can drop her at her home. Subsequently Elizabeth Entriken approached Michael Anita and said in pidgin "yu fala go where" and later "me laek go wetem iu fala". She accompanied Michael Anita and Wilfred Akao from the club when Bruce Murray left the spot where Richard and Naomi Majchrzak were standing, walked in front of cars parked at the fence, came alongside of Michael Anita’s car and tried to grab Elizabeth Entriken. Elizabeth then called "Michael, help, help", and Michael Anita went to her aid, struggling with Murray while Elizabeth attempted to free herself from Murray’s grasp.
In so doing Michael Anita punched or pushed Bruce Murray so that Elizabeth was freed, then Elizabeth entered the back of the car, Michael Anita sitting in the front passenger’s seat before the vehicle was driven from the scene by Wilfred Akao.
The Crown case, as set out earlier, is that Elizabeth Entriken was forced, against her will, into the vehicle and driven from the scene. Bruce Murray went to the assistance of Elizabeth but was overcome by Michael Anita who pushed Elizabeth into the car which drove off with her legs still hanging from the L rear door.
With these two diametrically opposed scenarios, it is clear that the issue of her voluntaryness or otherwise in entering the car, must have the effect of seriously discrediting the credibility of the party not believed, for there can be no half measures, here, either she was taken by force against her will or she went voluntarily. There can be no issue, then, on the facts if found in the Crown’s favour, Michael Anita could nevertheless say he honestly believed she was consenting. For the manner in which the defence case has been argued, does not allow that fall back argument, as it were, since the defence alleges the complainant came out of the club with Anita at her suggestion.
THE CROWN EVIDENCE.
The Crown evidence about the abduction and assault relies upon that of the complainant, her husband Joseph Entriken, Naomi Tozaka, Bruce Murray, Richard Majchrzak and to some extent, (although he did not witness the incident) one Robert Vaha, a security at the club.
THE COMPLAINANT’S EVIDENCE.
Elizabeth Entriken said, in her evidence in chief that Michael Anita had grabbed her near the woman’s toilet at the yacht club and dragged her out by her hair towards a car at the entrance to the club. Michael Anita said "come with us" while Elizabeth said "no, I’m not going". There were people about the entrance, Michael said "we’re taking her to her sister’s house", Naomi said "let her go" and Bruce Murray came, said "let her go" and they kicked him, Murray falling to the ground. Wilfred Akao as driving the car. She was pushed into the car, her legs hanging out and the car was slowly driven off. Elizabeth was adamant that she did not want to go with Anita nor in the car. She was in the back. She said there were another two people in the car.
In cross examination Mr. Baker put to her whether she knew one, Donga Buga, a suggestion which she denied. It was then suggested that she asked a male person to ask Michael for a lift home that night. Elizabeth said "no, I would never go with him. I never asked."
She said rather than leaving the club with Anita, that she was dragged out to the car parked right in front. She recalled Naomi trying to grab her and pull her back into the club, for she said Naomi ran back into the club, scared. In cross examination it was suggested to Elizabeth that Bruce wanted Elizabeth to go with him, Elizabeth saying "Michael, Michael help me" when Murray approached. She denied saying that and when responding to the suggestion that Murray wanted her to go with him (in the sense, go off with him) she shook her head, in the negative, saying "oh, no he came to help. I did not speak with Bruce at the club. He must have known I’m Joe’s wife, he came to help."
In cross examination a question was put:
Q. "Its true he tried to grab you"
A. "He tried to grab me but Michael pushed him off"
When it was suggested that Joe (her husband) had already left, to go home she said "no, he was in the club".
She said Michael was in the car attempting to drag her in after him, for her legs were till hanging out when the car began moving. She denied asking Michael in a familiar tone where he was going (from the club); nor seeking to accompany him; nor not knowing where her husband was, when asked.
Mr. Baker asked a salient question about culture; he said,
"According to culture, it is not appropriate to walk or touch another (who is) in a relationship with family".
Elizabeth agreed with the suggestion.
THE COMPLAINANT’S STATEMENT.
Her statement, (tendered by defence - exhibit 1) given the police on the 11th January 2004, recounts to a large extent, the facts given by the complainant in court. Mr. Baker points to a large number of inconsistencies which were at variance he says, with her evidence in court today. Dealing only with the events surrounding her departure from leading up to and the Yacht Club that night, I must say that her recollection has given rise to that large number of inconsistencies of which Mr. Baker speaks.
Her statement differs in the detail and in same instances does depart from the evidence she gave the court. For instance in court she asserted that Mr. Anita had been thrown out of the club, (an assertion never proven although not strictly relevant in the circumstances of this case) while her statement she does not go that far, but says that she "saw Michael arguing with the security to get back into the club. I thought he must have been kicked out".
In her statement she went into greater details of the circumstances of her leaving the club. She said that Michael came to her after she had been to the toilet, grabbed her by the hair and started pushing her towards the main entry gate of the club, saying "lets go"; she was saying "let go of me" but Michael would not and said "no! She said Michael was aggressive towards her. She saw Wilfred Akao and two other men, standing around while this happened; although she then didn’t see any security.
Once outside she said Michael let go her hair and was pulling her by her arm. Naomi had followed and was attempting to pull her back to the club and said something like "let her go". Michael said "no, I’m taking her to her sister’s house". She then saw Bruce Murray came and he tried to grab her, saying to Michael "words like "let her go". She was dragged away by Michael, someone kicked Murray and she saw Murray on the ground.
She was dragged to a white government car which Akao was driving, reversing the vehicle to where she and Michael were, the other two men were in the car, and she was pulled into the back of the car by Michael while her legs were still out-side the car as it moved away.
(I should say I’m not satisfied that there were two other man in the car, men other than Michael or Wilfred Akao for no other witnesses speak of seeing them. Her evidence then is flawed as to that recollection.)
Joe Entriken did not see her leave the club. Curiously nobody appears to have told him that his wife had left in these violent circumstances.
On the evidence of Richard Majekrzak, he left the club after this altercation at the front, with his wife Naomi Tozaka. His evidence supported the story of Elizabeth in that she was forced into the car against her will.
He said he had been standing at the club gate waiting for Naomi when he became aware of an altercation out-side. He saw that Bruce Murray "got physical" with another man whom he did not know (but I take to be Michael Anita); Elizabeth was there; another man in the car was not directly involved. He then described Elizabeth as though she had been pulled or pushed; her hands were on the roof of the car, she was trying to resist; a man grabbing her legs, pushing her into the car, while somebody in the car looked like doing the pulling. The man out-side had had the argument with Murray, both had been going backwards and forwards, like a scuffle for when Murray first came he had said like "I don’t think that woman wants to come with you" and the other man said, "its none of your business".
After the scuffle and when the woman had been forced into the car, he saw the care reversed, the door was open and the woman’s feet were still hanging out, the car changed gear and drove off before the door was shut from inside.
His recollection of Murray then was that he tried to get away so as not to be run over. He and Naomi then went home.
His evidence was not seriously attacked under cross-examination, although, owning to the passage of time, he admitted he wasn’t sure of the actual words spoken, and wasn’t sure of where Naomi was, for he was watching what was going on.
Naomi Tozaka’s evidence supported the complainant in several material respects. She was talking with Elizabeth in the club. She walked about the club and talked to various people. She saw Elizabeth talking to a man she now knows as Michael Anita. She had been sitting at a table with Elizabeth who had been drinking wine. She was of the opinion Elizabeth had been affected by liquor and was drunk, for she couldn’t understand her. Later she left the toilet, waited for Elizabeth and heard her screaming. Naomi did not come to the car, only as far as the entrance. She did not recall seeing Richard outside the club but saw Bruce Murray who fought with Michael at the car. Naomi went outside the club. She saw Bruce Murray attempting to pull Elizabeth’s legs out of a car. A man was next to Bruce Murray. She did not know them, but Naomi said "let her go" and I’m satisfied, from the tenor of her evidence that she was not referring to Bruce Murray. She said she saw the guy punch Bruce Murray, although she can’t remember where Murray was hit, or what happened to him. Her attention was on Elizabeth for she saw the car go with Elizabeth’s legs outside the car. It was after that that Murray drove off. She said she went straight home afterwards and denied ever receiving a hand bag that night. Nor did she see any security at the gate.
Under cross-examination, she didn’t remember Elizabeth’s husband, Joe at the table the first time, although in chief she had said she did not know Joe well. (It must be remembered both Joe and Elizabeth live away from Honiara and had done so far very many years since 1989 whilst running their tourist resort at Lola, and only visited Honiara on occasion).
When asked where Richard was during this altercation outside the club, Naomi said he had been with her, ready to go home.
Naomi’s "friendship" with Elizabeth obviously dates back to that period before 1989 when Elizabeth left Honiara for Lola. Again her recollection suffers
from the passage of time but she is not afraid to say that she remembers Elizabeth as drunk.
On her version, again the complainant’s evidence that she was taken and forced against her will is supported. Her evidence is believable for it accords with the body of evidence which spoke of Michael Anita forcing Elizabeth into the car.
Despite poor recollection of these events (for they did not directly involved Naomi and they took place a long time ago) I am satisfied Naomi’s story of the altercation outside the club supports the complainants version that she was put in the car against her will, she attempted to resist but was overcome by Anita, and that Murray came to her aid.
Bruce Murray’s evidence was to the effect that he often drank at the club of an afternoon for he was an engineer working with Mobil, adjacent to the club. On that particular evening he had occasion to remember the events at the club for he had been smacked in the forehead with a closed fist by a man in a long sleeved shirt and lightly polished shoes, when he went to the aid of a woman whom this man was attempting to pull off a chain wire fence which was opposite the entrance to the club and which ran parallel with the roadway along the face of the club.
He had reason to remember those events, for he was injured in the affray.
He did not know the woman then but described seeing the woman hanging on with both hands, the man had her around the waist with his while he tried to drag her off the fence.
Murray then said "It doesn’t look like she wants to go where you want to take her" when the man punched him in the forehead. Murray fell down on his back and lost his glasses. After getting up, he attempted to prevent the man pushing the woman into the car. The woman was struggling, her torso and truck were in the car, her calves and feet were outside. The man whom he later knew to be Anita was trying to push her in the car.
Murray says he tried to grab the man as he sat on the back seat but was unable to prevent the car moving away, when he fell again. He had been unable to pull the man from the car for Murray stated he was stronger and bigger than Murray was.
Murray say he went back into the club that night in an effort to ascertain who the two men were and found that Wilfred Akao had signed in Michael Anita. He did not know who the woman was, although he knew of Joe Entriken for he had had fuel business dealings with him over the years.
He suffered 2 black eyes which he said, lasted several months.
In cross-examination Mr. Baker put his earlier statement given the police to him. Again that statement had much more detail, and Mr. Baker’s criticism of Murray’s evidence was directed at his recollection in court for much detail was absent and he had given different accounts of matters in court, matters which were recorded in his statement.
His evidence then is believable but he recounts what he recalls after this long passage of time.
In cross-examination, on that point Murray was asked?
A. "Forget is too strong a word, I over looked it".
Earlier he had said that his evidence had been given in 20 minutes and some things slip ones mind.
I must say, since his evidence was concerned with the altercation with Michael Anita (for he had been punched as he demonstrated on the forehead above the bridge of the nose) and he endeavoured to recount what took place between them in some detail, the passage of time has had its effect on his memory and exactitude, after a lapse of 8 years to the date of his statement, 9 years to his evidence in court may be excused.
I am satisfied however; that his recollection of events supports the complainant for she was resisting Michael Anita whilst he attempted to put her in the car and Bruce Murray came to her aid.
I am further satisfied that Elizabeth Entriken was affected by liquor but sufficiently in her senses, to be aware of what was going on about the car outside the club.
I am not too concerned over the differing evidence about whether she was placed in the R or L rear door, for what is clear is that she was seen to be driven from the club with her feet still hanging out, by both Richard and Naomi and their evidence corroborates the complainant.
The vehicle was angle parked facing into the chain wire fence. The open side of the car, in those circumstances would be the R side for the L side would be closer to the fence. Bruce Murray speaks of seeing the R passenger door opened by a person inside the car, Elizabeth speaks of the R side yet she also speaks of being pushed into the L rear of the car.
If I ignore a need to find which side she was placed, I can still make a finding on whether she went into the car voluntarily or was forced for there is no issue over the fact that she was taken from the club in the car, for to undermine the Crown case on matters which are peripheral to the major issues does not necessarily fatally flaw that case.
Again I am satisfied that Murray’s evidence supports the complainant where she says was taken from the club against her will by force.
I came now to the evidence of the husband, Joseph Entriken.
He is the General Manager of the Zipolo Habu Resort, owned by his wife and her mother. He married Elizabeth in 1982 and they have three children ranging in age from 20, 12 and 10 when his statement (exhibit 2) was taken on the 11th January 2004. He came to Honiara in about 1996 or 1997 for a 3 or 4 day visit to do some shopping. They do not visit Honiara often, perhaps once every 6 months. They stayed with Elizabeth’s sister, Angeline Yahata who lived near the Airport Motel, Henderson.
On the night they arrived at the Yacht Club together, about 6 or pm and they separately spent time with their respective friends, drinking and socializing.
In his statement he recounted talking to Michael Anita but could not recall the Topic of that conversation. He did say, however, in that statement,
"Michael Anita who is Lisa’s brother in-law. Michael married to Lisa’s sister Mary. Did not like Michael as I never trusted him. I had heard stories about Michael and had also lent him things which he never returned. Wilfred Akao was also there. I have talked to Wilfred on a few occasions and know him by sight. He was I believe the Commanding Officer for Central at this time".
Later in his statement, he said that at about 11:00pm when the club closed he looked for his wife to go home but she was not there. He was not concerned for on occasion his wife would disappear with friends to one of the night clubs and arrive home a bit later. He went back to Henderson, stayed awake for about 2 hours and became concerned enough to drive back into town to check the night clubs, to find them closed. He again went back to Henderson and to bed. He was awakened and went to the front door-
"I don’t think I heard any knocking but I opened the door and saw Lisa standing there. I clearly remembered Lisa at this moment. She was crying and was visibly distraught. She had grass and dirt in her hair and on her clothes, she was totally in disarray. Her clothes still seemed intact and I don’t recall any signs of injury. She was wearing her blue jeans and a top.
I was shocked to see her in this state and immediately brought her inside. She then told me what had happened to her. After hearing her story I was devastated, upset and full of anger. I ran a hot bath for her and helped her get clean.
I did not see how she arrived home.
After Lisa had calmed down we talked more about it. She did not want to report it to the police. I wanted her to report it, but she was to concern about the safety of her sisters in Honiara and for the offenders would intimidate and threaten them. As we were due to fly out from Honiara at 10am or 11am. We took the flights to Munda and never reported it. I never took Lisa to a doctor, leaving it up to her to make that decision".
In court he recounted to a large extent the material in this statement and added that he recalled talking with one John Baura, although could not recollect specifically about what he also talked to Michael Anita. He recalled seeing Elizabeth (Lisa) during the evening, the last time about on ½ hour before the club closed. She did not indicate to him that she intend of leaving the club. He then recounted going home and coming back to look for her.
Under cross-examination he conceded the conversation with Michael Anita could have been about Munda airport (which serviced the resort) although he didn’t recall that as an argument.
Mr. Baker was at pains to suggest to the witness that he, Joseph Entriken was upset by the tone of the conversation about Munda airport not functioning, but the witness could not recall. He did state that Lisa was there during this conversation. Later Mr. Baker cross examined on the aspect of the husband’s concern suggesting that he was not too concerned for it was a case of Lisa going with her friends but not telling him. The witness admitted that it was possible but very unlikely to happen that way. His earlier statement, that he "was not too concerned" when he found Lisa missing from the club at closing was at odds with his statement in court. Mr. Baker pointed out other inconsistencies but I was left with the impression the witness was truthful to the best of his recollection, although he was caught by Mr. Bakers cross-examination.
But prior occasions cannot throw light on this occasion, for Lisa is not alleged to have gone off with her friends to one of the nightclubs, but with her brother-in-law. The circumstances of her departure were not known to this witness, and he was not told of the incident outside the club, an omission which would suggest either security, were unaware of the incident or were unwilling to tell the husband through embarrassment, perhaps. As that latter, I need not speculate.
THE CASE FOR THE DEFENCE.
Michael Anita gave evidence on oath. He recalled the evening having been invited to the club by John Baura, the Permanent Secretary of Civil Aviations Department. He joined John Baura and was sitting at a table with Baura, Entriken and Lisa. They discussed the airport closure at Munda which he said developed into an argument with Joseph Entriken. Later in night one Donga Buga sought a lift with him. Lisa approached him, also and said in pidgin,
"iu fala go wea"? Anita replied!
"mi go baek nao".
She said!
"mi laek kam wetem iu fala".
Anita said,
"Okay nomoa, but wea nao Joe"?
And Lisa said! "mi no save".
Later George Ashley also sought to come with him, but changed his mind.
On the way out, one security said, "good night".
He went outside with Wilfred Akao and Lisa was following him, slightly behind, when outside Bruce Murray left the spot where Richard and Naomi were standing to his left and came along-side his car. Bruce Murray then tried to grab Lisa, on her left wrist. Lisa called "Michael help, help".
Michael Anita called to Wilfred and threw the keys to him, while Anita went to help Lisa. Lisa was struggling to free herself and Anita pushed or punched Murray in the stomach to assist in freeing her.
Anita then opened the back door for Lisa who went in, while Anita sat in the left front beside the driver. The vehicle was reversed and driven out. The car went east towards Henderson with the intention of dropping Lisa first, before Wilfred at Naha. Just in front of the old terminal, Lisa asked to turn the vehicle back, she didn’t want to go home yet. So the vehicle was then turned about and Wilfred was dropped at his residence at Naha.
After that the car was driven by Michael Anita back to the Yacht Club for Lisa wanted to pick something up. She went in. Anita waited outside in the car. Then they drove to Wilson Ne’e’s place at Ngossi, for "hot stiff".
Nobody was there so they went on to the river and parked. There consensual intercourse took place.
THE DISPARITY IN STORIES.
Of course this is not the story related by the complainant. It can be seen however, how different are the accounts of the happenings on that night. His evidence in chief was given in a strong, self assured manner. In cross examination he also pleaded lapses in memory, as had the complainant. Of course, as a senior officer of the Department of Civil Aviation, this court must be particularly careful when considering his evidence for, with such a background, the court must allow that the witness was a man of responsibility in the Community and one entitled perhaps to the Community’s trust. But nevertheless the court must weight up these competing stories carefully, not necessarily according the greater weight to that of the former Director by virtue of his position, but seeking to elicit from the evidence, the underlying truth as to the case.
In cross examination Anita said he saw his introductory member John Baura at the club and Wilfred Akao with whom he had been associated in the police force. In the course of his discussion with Joe Entriken about the closure of Munda airport, the argument became heated with Joe Entriken raising his voice. He had been at the club some hours drinking for part of that time with Wilfred Akao. The club was crowded.
Donga Buga spoke to him saying "Tambu Elizabeth Entriken would like to come with you". Anita replied in the affirmative and later Elizabeth approached him near the bar and asked the same thing, consistent with his evidence in chief.
Again he maintained that Elizabeth followed him from the club from the area of the bar, of her own volition, to the car when Bruce Murray tried to drag her away.
Wilfred was at the car (for Anita was to drive his vehicle) so that Wilfred was on the left side of the vehicle, the same side as Bruce Murray who was holding Lisa. Lisa called for help. Anita did not recount Wilfred Akao helping, although he was beside Lisa and Murray on that side of the car.
When asked why, Anita said that Wilfred may have been inside the car; McColm pointed out that Anita had the key, Anita said the locks (on the car) were not working, nor could he remember locking the vehicle in any event. McColm pointed out the fact of the stereo system in the vehicle.
Anita agreed that he threw the keys to Wilfred and Anita then grappled with Bruce Murray. He denied hitting him in the face rather he pushed or punched him in his stomach although Anita did not recall whether he fell over. He denied kicking Murray. While this was happening Anita said Wilfred was walking around the front of the vehicle to the driver’s side. Anita does not recall what happened to Bruce Murray, but says he opened the left rear passenger door for Lisa, and Anita got into the front left passenger seat.
I do not accept this explanation about this event.
Had she gone back to the Yacht Club as Anita alleges, it is highly likely she would have been recognized had the club then still been open. The fact that her husband was there must have given her pause if, as Anita says, she later had consensual sex with him for she would have realized, in the circumstances which were unfolding that such sexual congress was a possibility were she to return to the car from the club this second time. Again the events at the club support the Crown case for the preponderance of evidence points to Lisa having been taken against her will with force. Anita overcame the resistance of Lisa, for I accept the recollection of Naomi who says she heard Lisa scream. Naomi later said "let her go" directed at Anita, while Murray was endeavouring to prevent her abduction.
It is contrary to common sense to expect Murray, an older man to attend to coerce Lisa by pulling her wrist, from the company of two large younger man in whose company, on Anita’s’ evidence, she was willingly leaving the club. Murray could have had no expectation that a younger married woman whom he did not know, would willingly go with him in these circumstances.
Murray says he intervened for he saw this woman clinging to the chain wire fence obviously resisting Anita who was attending to pull her free and despite objection by Murray, put her into the car, against her will.
Richard corroborates both Murray and the complainant in that material aspect, the forceful taking of the woman against her will for he saw Murray attempting to help release her from Anita’s control.
Consequently I do not accept that she accompanied Anita from the bar area of the club having asked to go with him. I find she was dragged the short distance from near to the woman’s toilet, through the entrance by the hair when she was screaming. She was physically forced into the vehicle by Anita who punched Murray in the process, punching him in the forehead causing both eyes to become "black" as is commonly understood.
I do not accept that Anita did not notice what happened to Murray after he punched or pushed him in the stomach, for common sense would suggest Anita would be very aware of Murray throughout the fracas, if he was, in fact protecting Lisa from Murray. I am satisfied Anita was principally concerned with Lisa, and having struck Murray to the forehead so that he was punched over, Anita was able to bundle Lisa into the car, despite Murray’s later ineffectual attempts to prevent it. The fact that her legs were seen by the various witnesses still outside the car when it was driven off by Akao (on Anita’s own evidence) corroborates the complainant’s evidence.
Cross examination directed to showing that the complainants feet or legs were not seriously hurt does not in my view, detract from the evidence of these eye witnesses for while outside the car, her legs would quickly be lifted from contact with the road as the car moved off. It is semantics to suggest that her legs dragging must necessarily suffer harm from the road, when dragging in this context meant they were not inside the car. I’m satisfied they were outside the car when it drove away from the club.
I should say I listened to Donga Buga’s evidence carefully for he was the club member who originally told Michael Anita that Lisa approached him to ask Michael Anita whether he would take her with him when Michael Anita left the club. In his evidence he stated he knew Elizabeth Entriken and recounted that she approached him and asked him to convey her wish that, after his drinks, Michael Anita drop her at home. In cross examination, it became obvious he hardly knew Elizabeth, if at all, for he did not know where she lived, didn’t know her husband, hadn’t spoken to her before, and didn’t know she lived on Lola Island.
When I ponder whether a stranger, a woman, would ask this of him, in a club, I must say I cannot accept it as likely. Since I disbelieve him, it follows that Michael Anita’s evidence of Donga Buga’s approach to him in these terms, reflects an animus towards Lisa and this witness Donga Buga has been used to mask that animus. For I find the departure from the club by Lisa with Michael Anita was not of her volition, but originated with Anita. Consequently the use of this witness reflects adversely on Michael Anita, and reinforces the animus I find he had towards Lisa at that time.
George Ashley’s evidence, for the defence, went to the issue of Lisa walking from the club with Michael Anita and Wilfred Akao. He said they left together, yet in cross examination his evidence was plainly of little use since his recollection of these events, so long ago, had only been jogged some time last year. He had, until then no reason, it seems, to recall this particular evening in late 1996 for nothing untoward, or extraordinary happened that night. His evidence did not assist me.
On the Crown case this detention continued from the time that the complainant was taken from the Yacht Club until she was left at Angeline’s place at Henderson. Of course the defence case is that she went of her own free will from the Yacht Club. Even if I am satisfied, as I am, that she was taken against her will, from the Yacht Club it may be on the defence case, that she changed her attitude towards Anita once in the vehicle. For the defence case maintained a consistent willingness on Lisa’s part to be complaisant and in part manage the proceedings (she directed the car to the Yacht Club; to Wilson Ne’e’s house twice; back from Henderson initially; involved in determining when Akao was to be dropped off at Naha and of course the drive westerly to beside the river) so that it may be implied, even if she initially refused (and that was not the defence case) it still behoves this court to be satisfied, beyond reasonable doubt, that she did not change her mind on the course of this evening.
I find Elizabeth not one to confound our intelligence. She appeared as her attention waned, less perplexed by the plethora of questions than by the effort to remember back so far and her attitude reflected this. She became less willing and more taciturn. Her answers suffered. She retracted into a sanctuary of mock indifference. An acceptance of her fate, facing her accused in court.
In contrast Anita exhibited a certainty of recollection on the material points where their evidence was so different. He was able in cross examination to recollect things which went to answer the cross examiner. I did not believe him where his evidence was in contradiction with that of the complainant.
Richard Murray, to put not too fine a point, appeared as a Good Samaritan. Whilst he has had a long time to mull over the events of that night, his evidence was given in truthfulness. His direct involvement with Anita consequently was his preoccupation once he became involved. I accept his evidence.
Richard was impartial, he may have known Murray, but his opportunity to know Lisa and Joe Entriken were restricted to those rare occasions when those two came to Honiara. I found him to be a witness of truth.
Joseph Entriken was not an eye-witness to the abduction.
As to the abduction and assault I find the following facts beyond reasonable doubt.
I find the unlawful detention continued throughout. I do not accept the story of Anita about driving around Honiara at her behest. It is inherently implausible.
She was affected by liquor, but her evidence does not concede any affection towards Anita whatsoever. Her status as his de facto sister-in-law would have given her pause, had she the slightest leanings towards Anita. But on her evidence about the conversations in the club, it is clear she did not like him. In such circumstances I find it improbable that, while affected by liquor her attitude towards Anita would veer totally towards one of affection culminating, in some hours, of 3 acts of intercourse. If anything, the alcohol would strip any masked dislike she had for him, and that was seen from the manner of her resistance when he dragged her from the club. She fought against it.
On the other hand, after the argument in the club with her husband over the Munda airport closure, it is open to find that Anita bore a grudge towards Joe Entriken. For on Joe’s evidence in his statement, Joe recounted facts which showed ill will, and in the circumstances I am sure it was reciprocated in light of the argument at the club. Anita’s intent, than, when he took Lisa from the club must be looked at with this evidence in mind
In F.A.A. Russell, K.C.’s Essays and Excursions in Law, The Law Book Company, Sydney 1929 the Author succinctly puts the need of the court (or jury) to ascertain the state of mind of the accused by stating the doctrine of intent, thus, at 62,
"Every crime contains not only an outward and visible element but a mental element. Crime is characterized by and involves some culpable state of mind, e.g., evil intention or blameworthy recklessness or the like: mens rea. (Many statutory offences are not crimes in this sense.)
And it is thus, often, for the Courts to ascertain the state of mind which accompanied an allegedly criminal act; but very often the facts speak for themselves. The law, at all events, presumes that a man intends the natural consequences of his own acts. So that if one strikes another with any degree of force with one’s hand or a weapon, that, without more, is an assault.
The law, in short, assumes generally with grim accuracy that one did it "meaning to," as children say in the nursery; and if the accused says he did it "not meaning to" it will be upon him to prove accidents, as that the other fellow ran against the fist, or insanity or some such improbable story which, however, if clearly proved, will excuse the apparent crime".
I am satisfied that he took Lisa from the club "meaning to" abuse her for his animus in someway reflected his ill-will that he held towards her in place of her husband. His story of her "kissing, hugging" and consensual sex paints a picture of his affection. The reality was far different. I do not believe his story. His behaviour towards her was consistently that of a corrupt intent to demean assault and rape her, an evil intent rooted in some perceived insult towards him and his need to express his dominance and power over this small woman.
When he abducted her, he intended to rape her, for that was the consequence of his acts.
I PROPOSE TO NEXT DEAL WITH THE QUESTION OF ASSAULT RAISED IN COUNTS 3 AND 4.
Mr. McColm, in his opening related these assaults to separate incidents in the car as Lisa was being driven from the club. There is no issue, at that time, with the fact that Wilfred Akao was driving. On the Crown’s case, (for she was the only one in the car able to give evidence for the Crown), Anita’s behaviour in the car towards the complainant was consistent with the violence he demonstrated outside the Yacht Club and the force he used, both towards her and Bruce Murray. For clearly his assault of Bruce Murray when he struck him on the forehead with a closed fist was such as to put Murray on his back on the road and give him two black eyes, but was necessary for the successful abduction of Lisa
In her evidence in chief, Lisa recounted, after being pushed into the car by Anita, hearing the men in the car talking in dialect. She asked when they were taking her, for they were going in the wrong direction, away from Henderson. She said Michael slapped her face, not just one time, and she was really scared. She kept asking, for the car was going in the wrong direction, when Michael hit her on her head, punched her and she blacked out. Mr. Godbolt in cross examination asked her about the blow to her head, and she said she realized that it must have been hard for it was very painful having bruised the right side of her head. This happened, she said while the car was in Honiara for the spark of lights in the street. She said she had been slapped hard before and had "seen stars".
In Mr. Bakers cross examination, he concentrated on the discrepancies between the evidence which she gave in court and that which was recorded in her earlier statement to police. In that statement she recounted being punched twice to the head soon after the car left the club, when she blacked out after the 2nd punch.
When she regained consciousness, Wilfred was still driving with the other two men she didn’t know still in the vehicle with Michael Anita, she asked "where are we going, take me back" before Anita struck her again with a clenched fist, blacking out when she came to, the car had stopped near a mountain of gravel and while she remembered Anita there, she could not remember the others.
The events which took place in the car were not such that I can with any reliability, isolate particular incidents, the slapping, the punching, or the dropping off at Naha of Wilfred Akao. The defence case is so diametrically opposed to her short recollection, for Anita tells of driving to Henderson, back to the Yacht Club, to Naha, to Wilson Ne’e’s place then to the isolated sport beside the river (the mountain of gravel) in the vehicle. I do not accept Anita’s assertion that she was in fact driven back to the Yacht Club, for that was inherently implausible. I must still be satisfied beyond reasonable doubt, that an assault or assaults took place in the car before the acts of sexual intercourse.
I must also be satisfied either that there is corroboration of such assaults or that not withstanding no corroboration, I accept the complainants’ evidence on this issue.
I raised the issue with counsel and Mr. McColm pointed to two matters which corroborate the complainant’s evidence. They are: (1) the injuries suffered by the complainant, injuries which were described as bruising to her head, (she could feel it) bruising to her back and abrasions above her ankles. Joseph said he complained of bruising, and he later saw minor scratches on her lower legs. He said she had scratches on her face when she appeared on the door step in the morning, although he did not mention observing any particular injuries when his wife was in the bath shortly afterwards. His statement to the police (exhibit 2) recounted "she was crying and was visible distraught. She had grass and dirt in her hair and on her clothes, she was totally in disarray. Her clothes still seemed intact, and I don’t recall any signs of injury".
I am satisfied, however, since his statement did not specifically deal with the issue of her complainant of injury on his observations, that his evidence made in court, recounting what he had seen and what he had been told by her, of bruising causing her pain, does corroborate her evidence of injury, and that may be used in so far as the assault in concerned for there was no further evidence of punches or slaps during the acts of intercourse.
The distressed condition of the complainant is a matter which may be used as corroboration in the circumstances of the abduction, assault and rapes.
The test as to corroboration set out in R v- Flannery [1969] VicRp 72; (1969) VR 586 (CCA) as being whether an inference which the jury could reasonably draw is that there was a causal connection between the alleged assault and the distressed condition, has that gloss put on it, the distressed condition may only amount to corroboration where reasonably explicable of the assault having occurred. So where for instance, it may be suggested (as here) that it is equally explicable with the complainant’s fear of her husbands’ possibly angry response to her state, this court should be satisfied beyond doubt that it is explicable only on the basis of the assault.
I am so satisfied, for the initial violence took place at the club, and was seen to have been occasioned her by Anita. Distress at the time of the abduction at the Yacht Club is clearly relevant and on the evidence that I have recounted, giving cause for Murrays’ intervention, coupled with other witnesses recollection of Lisa’s screams and acts calling for assistance, demonstrate her distress.
I’m satisfied for these events took place over some hours and her exhaustion and distress was manifest to her husband, and neither her husband nor the complainant attributed the husbands’ anger to the complainant arriving so late.
The second matter which Mr. McColm says may be used is that of the circumstances in which she was forced into the car for independent evidence showed violence by Anita towards her then (Murrays recollection of her being dragged off the chain wire and Richard’s evidence of her being bundled into the car vehicle she hold onto the roof, attempting to resist) which corroborates her evidence of continuing violence in the car when she sought to remonstrate with Anita, asking him to take her back. I’m further satisfied she was assaulted in the car whilst Akao was driving, by Anita slapping her face and punching her on at least two occasions. I accept her evidence on this.
I find that Lisa was assaulted by Anita by punches and slaps whilst she was in the car during the early part of the journey. I am not prepared to separate the incidents however, but treat them as a series of acts which amount to an assault. Lisa gave evidence of being punched and blacking out. I am not satisfied she was knocked unconscious for experience shows that a person does not recall the actual blow which knocks one unconscious rather presuming after the event. Had she been unconscious for any period of time it would more than likely cause concussion so that her complains may well have mentioned headaches and nausea afterwards. Nevertheless, she was the object of Anita’s attention and able to recount what happened to her in the car. The punches obviously dazed her, for if she did not loose consciousness, on her evidence she did not recall much after the punch until she became aware the car had stopped near the gravel.
Mr. Baker criticized the corroboration asserted by McColm, saying that the court could not satisfied either as to distress or injury, for there was no medical examination.
I am of the view that the latter does not take account of the realities of the situation. If Lisa, (her expressed wish then), did not wish to lay a complainant with the police but sought, in effect, sanctuary at Lola, then remaining at Henderson was not an option.
I accept these matters as corroboration.
I’m satisfied then, of Anita’s assault in terms of section 244 of the Code in the car immediately after it left the club whilst Wilfred Akao was driving.
THE RAPES.
It must be remembered at the distance of some 8 years, for the complainant to delineate a scene, repeated 3 times, of fear revulsion and confusion where there could be no spectators and where the 2 actors are so diametrically different in their stated recollection, requires this court to apply the understanding if possible of a jury of the whims, wiles and machinations of human nature so as to get at the truth.
But the court must go further in matters such as this for in complaint involving an element of sexual assault, on complainant by a woman; the court must find corroboration in relation to the rapes as well.
For this requirement is a rule of practice; to prove corroboration is incumbent on the prosecution when seeking to satisfy a court of, the credibility of the complainant in sexual cases for otherwise, the court would most probably be left with oath against oath, where the accused often stands unsupported by other witnesses because of the hidden nature of the acts complained of. The reason for this stems from the alleged ease of complaint, and the difficult, to refute it,
"...As to the second submission, I think it is clear that corroboration is not required by law, but in practice persons are not usually convicted on the testimony of a complainant woman in criminal proceedings for a sexual offence, unless her testimony is corroborated by independent evidence implicating the accused. The reason is that practical experience shows that allegations of sexual misbehaviour are easy to make, and difficult to refute. Nevertheless, an accused may be convicted upon the uncorroborated evidence of the complainant, provided the court is satisfied it is true. In cases where such corroboration is lacking, it is necessary that the trial judge or magistrate makes it quite clear-as I now do-that the danger of convicting upon such uncorroborated evidence, is very much to the fore of his mind. This is the rule laid down by the Privy Council in Chiu Nang Hong v. Public Prosecutor (1), and applied in McCallum v. Buibui (2). In Townsend v. Oika (3), where the above cases were not cited, I put this last point at the level of a rule of prudence; in doing so, I consider that I was in error, and not only should the risk be borne in mind, and mentioned in the reasons for decision, but failure to do so will result in the conviction being set aside, on appeal..."
(Kearney DCJ, The State v Andrew Tovue (1981) PNGLR 8 at 10).
Whether the practical experience of which the Deputy Chief Justice speaks relates to conviction rates in sexual assault cases in England, USA and Australia for instance or the incidence of complaints which actually go to trial, I do not know, but the use of that phrase, "that practical experience shows that allegations of sexual misbehaviour are easy to make" has not been borne out in the Solomon Islands in this case, for the complaint lay for some 6 years before it was made. The phrase might also be described as sexist for that it presumes a willingness to make an allegation that is not true. But truth in the judicial field, following a trial at law, (for that is the natural probable understanding, underlying the use of the phrase by Kearney CJ, experienced in the trial milieu) does not necessarily result in truth as perhaps understood by the community at large.
For it must be remembered a trial is but an accusatorial pursuit with its end view, whether the elements which go to make up the offence, have been proved "beyond reasonable doubt". It is not an inquisitorial investigation rather one overlaid by established rules of practice, procedure and evidence often directed to the pursuit of "fairness" for an accused. So that, a finding of "not guilty as charged" after trial means just that, not that the accused has, following an inquisition, perhaps been shown to be innocent. Consequently it may just as easily be said that allegations of sexual misbehaviour whilst easily made are difficult to prove. For this argument has resulted in other jurisdictions amending the law, evidentiary rules or rules of practice (for such is the case here) relating to the need for corroboration in matters involving, in some way or other, sexual assault on women. An understanding of the nature of that argument was espoused by Miles J (later Chief Justice of the ACT Supreme Court) in the Supreme Court of PNG’s judgment in Peter Townsend -v- George Oika (1981) PNGLR 8 at 26 -
"...However there is, as Pratt J. has observed, in other countries at the present time, well-articulated criticism of the corroboration requirements particularly as applied to rape cases and in principle to all cases of sexual assault on women. It is claimed that the existing rules discriminate against women, lumping them together with children and criminals. See generally Jocelynne Scutt" "Reforming the Law of Rape: The Michigan Exchange" (36) and article "The Rape Corroboration Requirement" (37). In some of the American States where formerly there could not be a conviction for rape without corroboration (and where there was an extraordinarily low conviction rate by Papua New Guinea, and for what it is worth Australian, standards) the corroboration rules have been thrown out altogether: Susan Brownmiller, Against Our Will (Penguin ed., 1975), pp. 278, 372. Moreover, the principles of "modern psychology" outlined by Wigmore and expanded by Glanville Williams are under attach in the post-Freudian area: see Barbara Toner, The Facts of Rape (London, 1977), pp. 112, 202, and Australian Law Reform Commission Discussion Paper No. 16, "Reform of Evidence Law" (Sydney, 1980), p. 3. A proper consideration of these matters and their implications for Papua New Guinea awaits argument at another time. I would add in conclusion and for greater caution that the rules relating to corroboration apply in cases of sexual assault upon males as well as upon females."
I reiterate the ultimate comments and would urge law reform in this area.
Corroboration may be found in the accuseds’ case which put a version of events which I find false, a version designed to shift blame-worthy conduct in the events outside the club, to Murray. I find it evinces a malevolent intent to avoid the probable consequences of their acts, and thus is corroborative of the Crown case that she was taken against her will.
That particular malevolent intent in Anita, then may be deemed to have continued for I accept the complainants story of the rapes in preference to the consensual story given by Anita. It follows that I find corroboration in his fabricated version of events surrounding the acts of intercourse, for the detention continued until her release early in the morning.
The corroboration on the charge of abduction is found in the evidence I have touched on by Murray, Richard Majchrzak and his wife, Naomi.
In the assault in the vehicle, and in relation to the rapes, I rely on the corroboration offered by the accused’s false assertions, coupled with the continuing detention, and the fact of her distressed state seen by her husband.
The issue in the rape charges is that of consent for the fact of the three acts of intercourse is not disputed.
The complainant consistently denied the defence suggestions that the circumstances put by defence counsel could only amount to one conclusion, and that was consent to the acts of intercourse. For Mr. Baker’s cross examination of Lisa was directed towards satisfying me of this. It did not for despite carefully putting the defence case to her she denied that version.
The wife of Michael Anita Mary Anita gave evidence for the defence. She is also the sister of the complainant, Elizabeth Entriken.
Mary Anita recounted a conversation she had with the complainant. She said Elizabeth had told her that an expatriate at the Yacht Club had tried to grab her, Elizabeth called for Michael who rescued her and took her home. This conversation happened, she said, at her mothers island, Home Peka, closer to Munda than Lola Island where the resort was situated. Two other sisters were there, Enda and Angeline. It would seem this conversation took place before Michael Anita was arrested in 2004, for on another occasion after that, Mary telephoned Elizabeth to discuss the arrest.
But the first conversation at Home Peka was the subject of cross examination by Mr. McColm who asked whether she had taken the matter up with her husband; but Mary said she neither spoke to Michael Anita about it nor asked Elizabeth for details.
Yet it was Angeline’s house at Henderson to which Lisa went after this event.
Since I am satisfied Angeline was able to see and assess Lisa’s condition when she arrived home that night, it is improbable that further discussion did not follow Lisa’s disclosure that Michael Anita had taken her home that night. Lisa denies any such conversation took place at Home Peka Island.
Later Mary Anita rang Lisa at Lola for Michael Anita had been arrested and charged in connection with those offences.
In that conversation Mary says Lisa told her that it was not Michael the police were after but Wilfred. Mary told her it was not good for it spoils their family name and that she should tell the truth. Lisa further said that RAMSI Police were after her; she did not know what to say to RAMSI police; she was frightened. Lisa claimed the police told her that if she did not tell the police what they want, the police would put her in jail. Lisa suggested that Mary report the matter to the Ombudsman in Australia. In cross examination, Mary elaborated about the Ombudsman statement, and said Lisa told her "This kind of way they have for people to open cases - like the right of people - they should be reported."
In the cross examination of Lisa, Mr. Baker had put to her that she told Mary- "...Joe told me it is very unfair of RAMSI to force people to reopen cases, if that happens, people should report RAMSI to Ombudsman in Australia."
This was denied, Lisa stating that after RAMSI took her statement, she "wasn’t allowed to talk to anyone, I wouldn’t make that up".
In re-examination, Mr. McColm raised the matter of the telephone conversation. Lisa reiterated that the call was made by Mary, who asked "did you report it" to which Lisa replied "I’m not allowed to talk to anyone". Mary was upset and asked Lisa to write a fax to say she, Lisa, was sorry and for her to withdraw the case. Lisa said to Mary:
"...It is very embarrassing to the family what Michael has caused - so I’m sorry I cannot do anything to help you." Mary was crying - I said. Yeh, Yeh to help her - Mary said RAMSI were the bad people. She said, "you’ve stupid I know why, they are after Wilfred Akao", I said if that’s what you think - but I cannot back off - give it to justice, its too late, I’m very sorry."
She said she was using Michael’s brother’s phone, she had to go but she wants to call me again - "I said I cannot talk to you, its not allowed".
Clearly Mary is suggesting Lisa has made a false complaint to the police. For the earlier conversation Mary would have the court accept, recounted the true circumstances of the evening. They were that the expatriate man attempted to pull Lisa as Lisa said and consequently Michael Anita went to her aid.
I do not accept that this recounted conversation by Mary reflects the facts. I accept Elizabeth’s evidence that Mary put these allegations to her.
In his closing address Mr McColm, for the Crown conceded that, even if I found Akao was concerned in the "taking away" there was no evidence of the intent required by S.139, the intent to cause her to be carnally known by Anita.
Consequently the Crown relies upon the alternate charge under s. 250, which requires before conviction, satisfaction in the Court of intent by the accused, to "cause that person (the complainant) to be secretly and wrongfully confined".
The evidence of the taking of the complainant outside the club is evidence relevant to the charges against both. When I read the Record of Interview between Wilfred Akao and Dec. Snr. Sgt. Harwood (exhibit "A" - prosecution) taken on the 6th March 2004, Akao was evasive about these events. His answers were to the effect nothing untoward happened that night. He said Anita drove him home. I do not accept his statement. He did not know the girl Anita took but he had been talking to her at the club and she came with them in the car. He witnessed no assault. He did not know Murray. He recalled Anita telling him the girl was his sister in law.
I do not accept the truthfulness of Akao; she was driven from the club in unusual circumstances, even were Anita’s version to be believed for at the very least there was a violent altercation with an expatriate, before the girl was driven away. Akao makes no mention of seeing this despite having been asked about leaving the club.
Again, I am satisfied Wilfred Akao drove the car, for the Crown proved that beyond reasonable doubt. Anita admitted that fact.
Consequently to say, as he does at A46, that Michael (Anita) was driving the car is falsehood. When asked about whether the girl had been assaulted on the way to his home he replied no and again, Q95 "Did you see anyone hit her", he answered "no".
Since his earlier statements about taking the girl from the club in the car are demonstrably wrong, I cannot accept his responses to those questions about the assault. I accept the evidence of the complainant where she says she was slapped and punched by Anita in the back seat and that happened whilst Akao was driving the vehicle. I do not believe Akao’s evidence of this incident to be honest.
On the evidence that I have touched on earlier, I am satisfied the complainant was driven from the Yacht Club by Akao, against her will by force. I am further satisfied Akao, as the driver of the vehicle, would have know very well what was happening at the club and in the vehicle while Anita was slapping and punching the complainant in the back seat.
The complainant was driven away and wrongfully confined in the vehicle driven by Akao. I am satisfied the elements of the offence, abducting with intent, contrary to S.250, have been made out.
I am further satisfied, since he had been a party to the abduction by force that his participation was a joint enterprise with Anita and he is guilty of the assault in the car. He has not sought to show disassociation from any mutual aiding nor can this court find any on the evidence.
Mr. McColm addressed the issue raised by the defence in its case, that the prosecution was motivated by a RAMSI conspiracy.
The complainant rejected it. In the circumstances, when one assailant was the Superintendent of Special Constables and the other, an Assistant Commissioner of Police, who realistically, could the complainant turn to after the event? As was commonly said in the boot-legging era in the United States, "the whole neighbourhood knew, but not for the telling" (for to do so risked being visited with serious retribution). With investigation done under the auspices of RAMSI, the Court must be satisfied, on the evidence brought, of the commission of these offences, weighing the evidence of all the witnesses, not only the Crown witnesses. To allege a RAMSI conspiracy when the very purposes of the RAMSI intervention was partly to rebuild the RSIP which was seen to be corrupt, is somewhat trite. This Court must be cautious in its deliberations involving such senior police officers but the allegations here are not about corruption as such in the Force but criminal acts committed against two members of the public.
The information laid by the Director of Public Prosecutions does not suffer then from any malicious wish to pursue these men by virtue of their former office but relies on the complainant verifiable by supporting evidence of such offences, alleged. The Director has a duty to perform in relation to that Information laid, and this court must try these accused in accordance with law.
Mr. Baker rightly pointed to the inconsistencies in the complainant’s evidence. I accept that he successfully showed many such inconsistencies in his cross examination, but I am still left with a scenario outside the club of a violent altercation seen by independent witnesses between Bruce Murray who was seeking to be a Good Samaritan, and Michael Anita who succeeded in taking the complainant away by force with the assistance of Wilfred Akao.
I am left with the conflict in stories between the complainant and Akao as to what took place in the vehicle immediately after the abduction. The resolution of that conflict is relatively easy, for since they are so diametrically different, acceptance of one story means disbelief of the other. Anita’s version relied on a taking at the wish and suggestion of his de facto sister-in-law, a version which I disbelieve, his continued story of willingness and togetherness in the car during the journey cannot be accepted in the face of the complainants version which was more likely, following on as it did from the story of unwillingness, violence on Anita’s part and perseverance with his intent to abduct despite Murray’s intervention, given the court by other witnesses.
Again Mr. Baker raised the issue of the failure to report to the police, an issue I have dealt with.
So far as the rapes are concerned Mr. Baker points to the lack of medical investigation. I believe since I stand in the place of the jury, that in this country at that time, it would be highly unlikely for a de facto sister-in-law to undergo medical examination in Honiara whilst both Anita and Akao were here. It was far more likely, as Joe Entriken said for them to go back to Lola (to recuperate) and be distant from Honiara. This was discussed between them.
Mr. Baker again pointed to the Crown failure to support the evidence of complainant and the distressed state the complainant presented at home by not calling Angeline, the sister living at Henderson.
That is a mater for the Crown to weigh up, this court need only concern itself with the evidence before it. The Crown did call evidence of "recent complaint" from Joe Entriken and both he and the complainant spoke of her state at the time.
Angeline’s name did come up in Mary Anita’s evidence, for Mary said she was present at a family gathering, earlier than the phone call. I have drawn conclusions from Mary’s use of that supposed meeting. There is no obligation on the Crown to seek to call evidence in rebuttal of Mary’s allegations, to the fact of Angeline’s absence which, while open to comment, has been dealt with earlier in my reasons. To the forefront of my mind is of course, the very difficult problem which these proceedings have created in the complainant’s sibling family for there are 6 siblings. Notwithstanding the existence of the Criminal Code, family members may well view actions of other members differently to this criminal court (as Mary has opened upon) and to speculate further about the reasons why one sibling has not been called is pointless. I only need deal with the evidence before me.
Mr. Baker argued the defence case that the complainant used to go to night clubs whilst visiting Honiara and therefore it was consistent with her husband’s evidence which conceded that she went sometimes with her friends. But she denied that was her intentions on that night and nowhere, in the evidence of the accused Anita, did he assert that Lisa suggested such a course on that night. So while she may have in the past, the relevance is absent in the circumstances of the Crown case argued before me. Of course, it does go to her credit, for she disputed the assertion that she went without her husband’s knowledge, despite her husband’s concession that she sometimes went but he did not concede that was done without his knowledge. Her credit then was not undermined on that aspect.
Of course her recall as shown by Mr. Baker suffered seriously by the time elapsed since these events, some 8 years. Like Mount Everest from a distance, however, the principle facts apparent to the witnesses, remained clear.
Mr. Baker spent some time arguing the paucity of evidence of the injuries allegedly suffered by the complainant on the night. I have detailed them elsewhere. Her husband Joe Entriken didn’t see the bruising to her head. He put it down to her skin colour, but she did complain of the pain of the bruise. Her cuts and abrasions to her face were relatively insignificant for there was no mention of any particular attention given then to help them mend. I am minded to rely on Joseph Entrikens recollection; she was rigid with shock when she woke him in the early hours of that morning. Mr. Baker cross examination of Lisa, suggesting she may have been distraught, then for fear of her husband’s wrath for coming home so late was turned for she answered that her husband was angry but at not at her. I accept her evidence on that point. I have dealt with the evidence of Donga Buga elsewhere. His evidence and that of George Ashley lacked veracity for the reasons given.
I have also dealt with Mary Anita’s evidence, although Mr. Baker suggested I should find, on the strength of her evidence, that Lisa was locked into a story given the police at the time of her statement. That presupposes Lisa’s statement was a fabrication concocted by the investigating police, a supposition not supported by my finding on her veracity in the witness box over the events surrounding her taking, for the principle issues, the question of her consent; the fact that force was used and the fact that Murray came to her aid, all were corroborated by independent witnesses. In fact the story recounted by Mary as having come from Lisa, was in fact the story given by her husband Michael Anita in Court.
It is not, as Mr. Baker says a matter where the Judge need cobble together evidence to make the Crown case (if so, the accused would be entitled to an acquittal) for there is evidence that I have touched on, which satisfies me of the issues in each and every charge. There has been little need to reconcile evidence which may be equally consistent with guilt or innocence, for I prefer the evidence of the Crown where inconsistencies of the magnitude in this case, arose.
Mr Godbolt again was careful to relate the inconsistencies of the complainant’s evidence to her general unreliability. I agree there were inconsistencies but her reliability as a truthful witness on the essential facts, has not been successfully impugned. To return a verdict of guilty of abduction, is I am satisfied proper on the evidence. I am equally satisfied of the assault in the car driven by Akao from the club. As I say I cannot believe his version given in his statement. His co-accused conceded there was a ruckus at the club involving Murray and to hedge and hesitate as he appears to have done in his Record of Interview over who drove the car on that night leaves me in no doubt about his recollection, and in the fact of other evidence contradicting him, his veracity.
FINDINGS:
MICHAEL ANITA -
Count 1. Guilty of abduction contrary to
s. 139 of the Penal Code.
Count 3. Guilty of assault contrary to s. 244 of the Penal Code
Count 4. Not guilty
Count 5. Guilty of assault contrary to s. 244 of the Penal Code.
Count 6, 7 & 8. Guilty of Rape contrary to s. 137 of the Penal Code.
WILFRED AKAO -
Count 2. in the alternative, Guilty of abduction contrary to
s. 250 of the Penal Code.
Count 3. Guilty of assault contrary to s. 244 of the Penal Code.
Count 4. Not guilty.
BY THE COURT
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