Tahinao v Regina [2005] SBHC 27; HCSI-CRC 369 of 2004 (12 December 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 369 of 2004.

JOSIAH TAHINAO

-v-

REGINA

(KABUI, J.).

Dates of Hearing: 1st, 2nd, 3rd, 4th, 8th, 10th, 11th November & 2nd & 5th December, 2005
Date of Judgment: 12th December 2005.

P. Little for the Crown.
M. Swift for the Accused.

JUDGMENT

Kabui, J. Traditional medicine is part of the cultures in Melanesia, including Solomon Islands. There are custom or traditional healers in many cultures in the world. In Melanesia, there are two types of custom treatment for ills that befall people in society. The first is the treatment for magical spells that affect people and are sick because of bewitchment by other people. The second is the treatment for ordinary sickness which may respond readily to treatment by medicinal herbs administered by custom practitioners who do not have any form of recognised formal qualification. Some custom medicine practitioners do combine the ability to administer treatment for magical spells as well as treatment for ordinary sickness, depending on the diagnosis prevailing at a particular time in a particular case. This case is about the practice of custom medicine that allegedly went wrong. I will come back to treatment practice in custom medicine later on in this judgment. It is an area of custom knowledge in which I am personally interested and acquired a reasonable amount of knowledge in the practice of custom medicine on Malaita.

Josiah Tahinao is the accused in this case. He comes from Malaita. He is charged with three counts of indecent assault on three women and one count of rape, he allegedly committed against one of them. The burden of proof beyond reasonable doubt lies with the Crown. The accused does not have to prove his innocence. He remains innocent until proven guilty by the Crown.

The issues.

Identity of the accused is not an issue. As regards the alleged rape of A, sexual intercourse did take place and so penetration is not an issue. The issue however is whether or not A had consented to the accused having sexual intercourse with her. The accused however denies the acts of indecent assault alleged by the Crown in the record of interview with the Police. However, in his evidence on oath, he admitted inserting his fingers into the vagina of L, N and A. That is, he accepted the evidence of L, N and A though his version is not as detailed as each of them said in evidence.

Consent or lack of it is therefore the issue in both cases of alleged indecent assault and alleged rape.

The alleged indecent assault of L.

This complainant is married with one child. She is a Secretary working for a logging company in Honiara. She has had secondary education up to Form five. Her husband works a personnel officer in a Government Department in Honiara. They both live at MBokonavera Heights in Honiara.

L had heard in her workplace that the accused was a custom doctor who had cured the sickness of someone. On the 2nd September 2003, L and her husband went to Vavaea Ridge and invited the accused to their home to see L about her sickness. She was experiencing pain in her belly region. The accused did arrive in their house and rubbed oil on her stomach region. She had to take her shirt off to allow the rubbing to take place.

The accused returned the next day with their consent. Again, the accused rubbed oil on the belly region and then told L that she had yellow fever. The accused told her that he had to clean her up and told her to tell her husband that so that they all would have to go inside a room for him to do the cleaning up of her. All three went into the sleeping room. The accused took a white plate and poured water into it. Then he told L to remove her trousers and pant and then to lie down and open her legs which she did as was told to do.

The accused then wetted a nappy with the water in the white plate and rubbed it on her vagina. Her husband sat next to her. The accused then inserted his fingers into her vagina and said the liquid inside her vagina was causing the pain. After the accused finished, they went out of the room.

Again, the accused returned the next day in the evening. Again, all three of them went into the same room and the same process of treatment was repeated by the accused. He inserted his fingers inside her vagina and then withdrew it. He did that more than once.

After the treatment finished, L told the accused that their neighbour by the name of N also wanted to see the accused. The invitation had come from G, the husband of N.

The alleged indecent assault of two sisters.

The accused did visit G and his wife, N, in their house also at MBokonavera Height. G told the accused that his wife, N, was sick. N told the accused that her sickness was belly sore. The accused told her that she would not live beyond 2003 because her sickness was very big and serious. The accused told N that he would cure her of her sickness. N had also told the accused that her sister, A was also sick. Her sickness was that she had difficulty attracting boys to herself for the purpose of marriage. The accused then told them that his treatment was to be done in a room and for that reason they went into the main bedroom. N’s husband was to be present also but did not attend because he was minding their baby who was then crying. Only the accused, N and her sister, A went into the room by themselves.

Inside the room, the accused told N to remove her clothes. She was wearing a trousers and a lava lava over it. She also was wearing a black T-shirt. She did as she was told to do. The accused told her to lie down and to open her legs. Again, she did as she was told to do. A was sitting next to N. The accused told N not to be ashamed because her sickness was inside her body. The accused dipped his finger inside a cup of water and then inserted his fingers inside her vagina. A brought the water from the kitchen and poured it into the cup. The accused had brought a bottle of liquid. It was yellow in colour. The accused inserted his fingers inside her vagina three times. He told her to push and she did. He withdrew his forefinger finger and it had on it a white stuff which he said was the sickness. N commented that the white stuff might be dead sperm but he said it was the sickness and she would be cured from then on. Then the accused said it was A turn to receive treatment.

He told A to lie down so that he would remove the cause of her sickness. He also poured water into the cup, dipped his finger into the cup and inserted his fingers into her vagina. He did that more than once. He said he was curing A so that he would marry her when she got better. After he finished, he told N and A to stand up and they all left the room.

The accused asked for a taxi and got a taxi and left. He said he would return the next day to give the last dose of treatment.

The alleged rape of A.

The next day, the accused rang and said he was coming to G house to give his last treatment. He arrived at the house by taxi about 8.30am. The treatment began about 9am in A’ bedroom. A asked what sort of treatment he was going to give that morning and he said he was doing massage on her. They went into the room and the accused told her to close the door which she did not. The accused told her to remove her clothes and she hesitated for sometime. She asked whether he was going to do the same treatment he did on her and N the previous day and he said yes. She said she would like N to come into the room and he said that it was not necessary for N to be around.

The accused then told her to lie down but she resisted. He kept on asking her to lie down and told her not to be afraid. He said he was a custom doctor and as such, he could talk to his hand and a man would die. She lay down but her clothes were still on. He began to rub oil on her belly and then he removed her clothes. He dipped his finger into the oil and inserted his finger into her vagina more than once. He told her to remove her shirt which she did. At this point in time, the accused had committed an indecent assault against A but he has not been charged for it.

The accused removed his trousers and asked if he could have sex with her. She said she was ashamed because N was outside. She then got up to leave the room but the accused pulled her down to the floor and lay on top of her. She struggled and wanted to shout but he shut her mouth with his hand. She struggled to get off from under him but could not get up. He then had sexual intercourse with her. She did not agree to have sex with the accused. He ejaculated on the floor. She stood up and went to the shower.

Statements to the Police.

L, N and A then told the Police the details of what the accused did to them as a custom doctor or healer. The belief in custom healing was what brought the accused to the homes of the complainants and then led to the alleged touching of their private parts and having sex with A.

The accused’s position in his caution statements.

The accused was interviewed by the Police on 3rd April 2004. He was interviewed again on 13th May 2004 and again on 23rd April 2004. He admits going to L’s house and doing massage on her back-side, belly and legs in the presence of her husband. He denies any indecent assault on his part. He also admits going to N’s house and doing massage on the belly parts of N and A but denies any wrong doing as far as the alleged indecent assault is concerned. As to the allegation of rape of A, he admits sexual intercourse taking place but says A had consented to it.

His denial to the Police that he had indecently assaulted L, N and A shows that he himself believes that inserting one’s finger into the vagina of a woman by a male custom doctor or healer is wrong and so he says for that reason he did not indecently assault them as alleged by the Crown. It also suggests that inserting one’s finger into the vagina of a woman is not and cannot be part of any treatment by any male custom doctor or healer in any community in Solomon Islands. It further suggests that his custom forbids such treatment by any male custom doctor or healer being done on any woman. Because of the general understanding of his custom practice regarding the treatment of women, it is not expected that any male custom doctor or healer should deviate from that understanding and practice. His denial of indecent assault would be consistent with his Malaita custom.

The first interview was conducted on 3rd April 2004. In that caution statement, he explained the procedure he used in treating people. He said he would pray first, followed by counselling and then treatment. He explained that the medicine he used came from the tree. What he meant there was that he would scratch the bark of the tree and would take the scraped dust and mix it with water and then gave it the patient to drink it. He would pray over it before he gave it to the patient. He said that he massaged the backside and the belly of the woman from Choiseul being L in this case.

The next interview was done on 13th May 2004. In this second caution statement, he revealed that he had water medicine contained in a plastic bottle. He said that he massaged the belly parts of the bodies of N and A and then gave them to drink part of the medicine water. The accused signed both caution statements.

The accused changed his position.

The accused in his evidence changed his position and admitted inserting his fingers into the vagina of L, N and A as alleged by the Crown, contrary to what he had told the Police in his caution statements. However, the accused explained that his denial of the alleged indecent assaults in his caution statement was a result of him being angry with the Police for being rough on him in the interview. The interviewing officer and the witnessing officer were called to give evidence and each of them refuted the allegation of the accused in this respect.

I regard this shift of position as crucial to determining the credibility of the accused. His shift from that of denial to admission regarding the indecent assault charges and then relying on consent as a defence holds the key to finding out whether the accused is lying or not. Some knowledge of custom medicine practice of the accused is essential to unlock the truth of his evidence.

Where then does the truth lie?

Evidence on custom medicine practice had been called by both sides in this trial. The knowledge about custom medicine is really the knowledge acquired of certain herbs, plants, trees, shrubs, creepers, animals, soil and the provision of the general environment. The knowledge is private and personal to the practitioner of custom medicine. The knowledge is secret. It passes from one relative to the other by word of mouth. Sometimes, the knowledge is bought from other persons. These days, most people do write down the names of the medicines they know and the steps to follow in applying the medicine as a treatment to the patient.

Custom medicine however is not a substitute for modern medicine in the hospitals and clinics in the country. In most cases, it is used as first aid but otherwise it is a supplement to modern medicine. In cases where modern medicine has failed, custom medicine is also resorted to as a last resort to save the patient’s life. It does not always work in the case of last resort.

The common methods of dispensing treatment are massaging the external parts of the body with the medicine, giving the patient to drink the medicine mixed with water from a cup, smoking part of the body with the medicine, wrapping the affected part of the body with the medicine leaf (heating), washing the external parts of the body of the person with a solution of the medicine mixed with water etc. Some custom medicine practitioners do pray to God for healing of the sick person as part of the treatment.

The other aspect of custom medicine practice is the casting out spells performed on someone. The treatment method is similar to that described above also accompanied by words of prayer to invoke God’s healing power. Some people use water and oil blessed by a priest (holy water) for this purpose as having the healing power of God. It is really custom practice being Christianized in these modern times to be in line with Christian principles.

Treatment of female patients.

Treating female patients with custom medicine is not unusual but there are rules of conduct to be observed in the custom of some societies in Solomon Islands, including Malaita. In the old days, childbirth was exclusively the preserve of women. It has now changed because of the fear of death at childbirth if no woman midwife is available or if there is an emergency and no midwife is available and the strict adherence to custom may result in the death of the mother. A male person may assist but in the presence of other women relatives and female friends. Attending childbirth is however a different matter. However, there is custom medicine which if applied during the labour pains can induce smooth delivery. Likewise, custom medicine can also help to expel or clean up the afterbirth from the womb. In each case, a solution is given to the woman to drink from a cup or an appropriate receptacle.

Menstruation and its associated problems in the olden days also used to be the preserve of women in Malaita and in some societies in Solomon Islands. Women were kept away from the village during the period of menstruation. Like in the case of childbirth, things have changed and women are no longer segregated from men during menstruation. I have heard of no custom treatment for irregular menstruation though there may be treatment to ease any pain associated with it. Whatever treatment there may be, it is administered by giving the patient to drink the medicine mixed with water. It would never involve any male custom medicine man touching the woman’s private part.

Sickness such as syphilis and gonorrhoea and venereal diseases may be treated with custom medicine mixed with water and giving the patient to drink the mixture. Touching the woman’s private part is not necessary.

Methods of treatment for patients including women.

The methods used in the treatment of patients by custom medicine practitioners are standard. That is, the private parts, the genitalia, must not be touched except by a person of the same sex if it is absolutely necessary. As I have said above, in all cases, massaging, smoking the affected external parts of the body, drinking a prepared solution from a cup or receptacle or washing the external parts of the body with the medicine solution are the standard methods of treatment for women and men alike. In fact, I have heard of no case in Solomon Islands or elsewhere in the world that by inserting one’s finger into the vagina of a woman will cure her of her sickness of whatever nature. The only cases of indecent assaults that happened in Solomon Islands were cases of false pretence by custom medicine practitioners. They were clearly exceptions to the standard practice in custom medicine.

The ‘custom medicine’ the accused used in the treatment of L, N and A.

L, N and A all said that the accused used water and coconut oil as the custom medicine. In the case of L, the accused told the Police in his caution statement that he poured water into a cup and not a white plate as said by L and her husband in Court. He said his intention was that after massage, he would give L to drink from that cup. That is consistent with custom medicine practice. That is however not what happened on the second day of the accused’s visit. After massaging L’s belly, he told her that she had yellow fever and she would need a clean up. L said what was poured into the cup was water. L did not see the colour of the custom medicine but did see the accused pouring water into the cup which she called a white plate. L’s husband described the custom medicine as being black but the oil was yellow in colour. It must be borne in mind however that on one of the occasions, the accused gave his treatment after 6.30pm. L’s husband said at one stage, his wife brought a bowl into the room. The accused said L’s husband brought him the bowl. It is not clear whether the accused had used water or water mixed with custom medicine plus coconut oil on all the occasions he treated L.

In the treatment of N and A, the accused used water and coconut oil. It is also not clear whether it was plain water or water mixed with custom medicine plus coconut oil. At one point, A was asked to bring water from the kitchen. The accused did say that the oil had been blessed by a priest and probably the water also. It is not made clear that when the accused talked about custom medicine, he meant blessed water and oil or just blessed coconut oil. The accused seemed to have meant both for he made no mention of any part of a tree, shrub, grass or any plant from which he extracted his custom medicine being the custom medicine mixed with water or oil that he used.

The evidence seems to suggest that what the accused called custom medicine in this case was coconut oil in a plastic bottle, allegedly blessed by a priest. What he was dipping his finger into was water. He also called that custom medicine. It could well be custom medicine mixed with water or purely plain water. The true status of the water medicine is not clear on the evidence before the Court. Certainly, there is no evidence to suggest that the medicine had come from a tree or other plants in the bush.

Was the insertion of his fingers into the vagina of the three women a genuine custom treatment?

The evidence of Misikeni (CW6) of east Kwaio in Malaita is that his custom does not allow any male person whether a custom healer or not to touch the private part of any woman. If there is any need to touch the private of a woman, it must be done by another woman, preferably, a female relative, or by the husband or in a hospital. He says the custom about women is the same throughout Malaita. The evidence of Namofunu (DW1) is the same except that negotiation between the parties can reach an agreement whereby a male custom healer can touch the private part of a woman with the consent of the husband or in the presence of the husband or a female relative. This witness is the elder brother of the accused who allegedly had taught the accused custom medicine. The exception he spoke about was specifically tailored to suit the accused’s case where with the agreement of L’s husband and in his presence, the accused inserted his finger into her vagina. In the case of N and A, G consented to them being treated by the accused. It would be speculation to say that G would have done the same as L’s husband did because he remained outside the room when his wife was being treated by the accused. In his evidence, G denied being aware that the accused was to clean up his wife and his sister-in-law.

When I asked Namofunu to tell me where on Malaita was inserting the finger of a male custom medicine healer into the vagina of a woman was a cure for any sickness of any woman, his answer was that it was the custom of his tribe and then he narrowed it down to that only of his family. It is therefore not the custom of West Are Are from which he and accused come and is not the custom of Malaita Island from which the Are Are speakers come. He created this exception to suit the accused. As a Malaita man, I do know that no male person on Malaita would ever dare touch the private part of the wife of another man. The husband would never consent to it unless it has to do with hospital treatment to preserve life. Every Malaita person knows this rule and I do take judicial notice of it. A Malaita man would not have done what L’s husband and N’s husband did in this case. It is against his custom to the core and the accused knows this very well. He would not have done what he did on a Malaita family. He would never do it or if he did, he would immediately face the consequences.

The two husbands in this case were soft men being from Gela and the Reefs respectively. They were obviously overwhelmed by the accused’s perceived ability to cure. The accused took advantage of them because they were too soft and not cunning enough to read his mind.

Counsel for the accused argued that the accused did believe that inserting his fingers into the vagina of the three women was the correct treatment in his custom. There is no evidence to support that argument. The accused’s case is that he had obtained permission from the husbands to do a clean up of the women. There is no evidence to say that inserting one’s fingers into the vagina of a woman is a tested cure in custom medicine for a woman complaining of belly sore and having difficulty in finding a husband. The accused was simply given a free hand to do whatever was necessary in his opinion.

The accused simply committed an act of indecency on the three women knowing that inserting his fingers into the vagina of the three women was not a cure for anything and would not cure them of their complaints. Each of the three women said in evidence that she had not been cured of her sickness after receiving treatment from the accused. Whilst it may argued that not all custom medicine treatment works miracles, the insertion of the accused’s fingers into the vagina of the three women did not work because it was not a cure for anything. That is the truth. I reject the argument.

Counsel for the accused gave an example of the magical powers of a bone being pointed at someone in aboriginal societies in Australia. Inserting one’s finger into the vagina of a woman under the pretext of curing her of her sickness has nothing to do with the magical healing on Malaita. Counsel cited no cases in aboriginal societies in Australia where inserting one’s fingers into the vagina of a woman is a custom cure for her sickness for belly sore and having difficulty in finding a husband. Counsel seemed to place emphasis on the accused’s explanation that the custom medicine was being guided into the vagina with the accused’s wet fingers having dipped them into the cup of custom medicine. In other words, his fingers were a kind of instrument that delivered the custom medicine into the vagina. That is indeed what the accused was trying to tell me in his evidence. Any such thought is obnoxious on Malaita. The accused knows it.

The short answer to his explanation is that magic does not work in the vagina of a woman in Malaita custom.

The vagina being part of a woman is like water being poured on fire. Water kills the fire. A woman kills the magic. A magic cannot work if a woman walks over it. No magic can survive in the vagina of a woman. They are arch enemies. Magical treatment in custom is not and cannot be performed on or in the vagina of a woman. It is an uncompromising tambu on Malaita. It is unthinkable there. Several books have been written about Malaita, its people and customs by anthropologists and missionaries which can be read by any interested person on this issue.

Furthermore, coconut oil and water even blessed by a priest and poured into the vagina of any women cannot cure her of anything. Let me say that lies do have their limits in society.

What the accused did to each of the women in this case was plainly indecently interfering with their private parts in the name of custom medicine treatment. I do not believe him. He was lying to the three women when he told them that they had to be cleaned up. That was the foundation of his intention to treat them indecently in the manner he did. There is no basis in Malaita custom being his custom and my custom for him to insert his fingers inside the vagina of the three women and called it custom medicine treatment for belly sore etc. The fact that there had been consent from the three women and the two husbands is irrelevant.

Consent in indecent assault on the three women.

There is no dispute about this. However, consent is no defence if the girl is under the age of fifteen years under section 141(2) of the Code. That is, consent is barred from being raised as a defence to a charge of indecent assault. (See R. v. McCormack [1969] 3 W.L.R. 175 and R. v. Sutton (Terence) [1977] 1 W.L.R. 1086). The women in this case are adults and had agreed to being treated by the accused and so the argument is that no indecent assault had been committed by the accused. But according to Archbold, Criminal Pleading, Evidence & Practice, 36th Edition 1966, at 1097, it is indecent assault if it appears that the woman consented to the assault out of fraud such as false pretence.

Was the consent obtained by false pretence?

In the case of L, her complaint was a belly sore. The accused diagnosed her as having yellow fever. In his evidence, the accused confirmed that L had told her that she had been experiencing belly sore. The accused did his own diagnosis and concluded that no one had poisoned her as she had alleged. However, he advised her and her husband that he would massage her body nevertheless which would include her private part. Both of them agreed. He said he held up the holy oil and prayed over it. He poured the oil into his hands, rubbed it over his fingers or hand and then put four of his fingers into the private part of L. He told her that after that clean up, her period would become regular again. Then he inserted one finger into her vagina for the custom water to enter her vagina. He repeated the same procedure during the last day of treatment.

L in her evidence denied that she told the accused that she was suffering from irregular periods, she was getting thin and that she suspected someone had poisoned her.

As to the case of N, the accused said in evidence that N’s husband, G, told him that he and N were not staying together well. G told him that N was complaining of belly sore, she was not eating well, her legs were sore and she experienced pain when urinating. He told G and N that N’s sickness was an old one. He asked them whether anything was wrong between them and they said no. He then prayed with them. He told them that he would clean up on N for her condition of experiencing pain during urination. He would also massage her belly. He again prayed for healing. He told them that if he did not treat her and if her faith in him was not forthcoming; she could die because her sickness had been active for a long time.

He said after that they switched over their discussion to A’ sickness. G told him that A was having difficulty marrying and told him to pray for her and find out what was wrong with her. He also discussed A with N. He told them that if the curse was not removed, it would be difficult to marry because she had been cursed by an ex-tasiu, (ex-Melanesian brother), because A had refused to marry him. He said he had meditated to find out about A’ sickness because she said that she was experiencing back-ache and belly sore. He told A that he would massage her belly and would give the same treatment he had given N for her irregular periods.

Both N and A denied the accused’s version of facts. I believe them. They have no reason to lie about the accused. They gave their evidence in a straight forward manner and I have no reason to disbelieve them.

The accused was an invitee.

The accused was an invitee to the homes of the complainants because of his status as a custom doctor or healer. All went well until he had sexual intercourse with A inside A’ room in the home of G. The status of the accused as a custom doctor or healer was then questioned by N and her family. L and her husband and N and her husband all believed that the accused was able to cure L, N and A. Their belief was based upon the assurance of the accused that he had the ability to cure them by using custom medicine. Nothing is wrong with custom medicine. It works and sometime it does not work.

The doctor/patient relationship.

The doctor/patient relationship created between the accused and the three women, L, N and A was what brought the accused into contact with the three women. He being a custom doctor or healer could provide the answers to the ills that befell the complainants. They believed him and that belief created confidence. That confidence created the willingness to submit to whatever treatment he was to administer to them. The submission to treatment was in fact consent in the belief that the treatment received was genuine and in custom medicine correct. In a doctor/patient relationship, the doctor occupies a dominant position and any treatment he administers is accepted without question by the patient because of the simple reason that the patient wants to get well as soon as possible. The patient does not investigate the professional background of the doctor or the doctor’s credibility as a practicing healer of sickness. The doctor is taken for granted to do right to his patients.

Conclusion on the indecent assault charges.

I find that the consent granted to the accused by each of the three women was based upon false pretence by the accused that he was able to cure them of their sickness and in doing so, indecently assaulted each of them. I find him guilty as charged and convict him according of each of the counts of indecent assault. I enter a verdict of guilty for indecent assault.

The alleged rape of A by the accused.

The accused said in his evidence that in counselling N, he discovered that she was cheating on her husband. She told him not to speak loud in case G would hear about it. He kept quiet as requested by N. She told him that the boy was from Are Are but warned him not to tell G about it. In other words, it was a secret between them and to be kept secret. Whilst working on A in the room, N was sitting down beside them. He then asked N why would she stop him from telling G about her flirting and N said that G would kill her if he should hear about her flirting. He then asked what should he do next and N said he should befriend A, her sister. He then asked N what else he should do and N told him to help her. He then told N that because she was in charge of A, he accepted N’s idea of befriending A. His understanding was that N had fixed him and A to marry and it was N to tell her parents of that arrangement.

Both N and A denied this in evidence. However, N did say in evidence in chief that whilst treating A, the accused commented that he was treating A and when she got better, he would marry her.

The case for the accused.

The case for the accused on the rape charge is that his understanding was that he was going to marry A because that was the wish of N. This arrangement was hatched up by N to keep the accused’s mouth shut about her revelation to him about her flirting with the boy from Are Are. Befriending A was the reward for keeping her secret from G. It was N’s idea. He agreed with the idea because A was N’s sister and she had authority to say anything about the welfare of A.

A, in cross-examination, denied being aware that the accused was going to marry her. She denied that there was any conversation about her to marry the accused. She denied being part of any talk between N and the accused about her marrying the accused. Likewise, in cross-examination, N denied encouraging her sister to marry the accused. She confirmed that A never agreed to marry the accused.

The event that sparked off Police investigation.

The fact that N saw the accused on top of A through the window of A’ room and A’ admission of sexual intercourse having taken place between herself and the accused had led to the accused’s activities being reported to the Police for investigation. N had reported the matter to her husband two days later after the event. The accused was not seen for seven months until in April, 2004 at the Market when N spotted him and then reported him to the Police having failed to pay compensation.

The accused made the fatal mistake of having sex with A in her room in G’s house. What attracted N’s attention was the shaking of the house and the fact that the accused and A were inside the room too long. She saw the accused on top of A having sex with her.

The allegation of rape is a serious one not to be lightly made against anyone.

One asks the question why should A accuse the accused of raping her in her room when her sister, N, was sitting outside in the veranda holding her baby and was aware that the accused and A had gone into A’ room? A is single. He seemed to have a liking for A. He had made the remark whilst treating A the previous day that when A got better he would marry her. That is the evidence of N in her evidence in chief. It was A who stopped a taxi for him the previous day. Curiously, he rang up the next day and told N to tell A that he was coming to give A’ last dose.

N obviously agreed because he had told them the previous day that he was coming to give the last dose. On arrival, he sent off Mark who was also present to go and buy beetle-nut and leaf elsewhere. Whilst Mark was away, he told A to go into her room with him. A was hesitant and asked N what sort of treatment the accused was going to give her. The accused cut in and said he was going to massage her.

They both went into the room and told A to close the door but she never did. Whilst inside the room, he told A to remove her clothes but she was hesitant to do so. She sat down and wanted to call N but the accused said that was not necessary. She then asked him whether he was going to do the same thing he did to her the previous day and he said yes.

He persuaded her to lie down and told her not to be ashamed. He said he was a custom man and could speak to his hands and a man would die.

There is evidence that in diagnosing sickness, the accused pretended to use palmistry to see any sickness by looking at his palm and reading the message from it. A eventually lay down but her clothes were still on. The accused then massaged her belly with oil. She had rolled up her shirt to expose her belly.

The accused then removed her trousers and put his finger into the oil and inserted his finger into her vagina several times. He told her to remove her shirt and she did. He took off his trousers and asked her for sex.

A said she was ashamed, her sister, N, was outside. She stood up but the accused pushed her down and lay on top of her. She struggled to shout but the accused shut her mouth. She struggled to get up and out from underneath him but she could not. The accused then had sexual intercourse with her there. She saw sperm on the floor and wiped it off. She said she did not let him have sex with him. She said the accused had forced her without her consent.

The accused lost his head and raped A.

The only explanation offered by the accused was that he believed A agreed to have sexual intercourse with him. He said he was confident of that because N had told him to befriend A. He said he never forced her as it was against his custom. The story about the arrangement between N and the accused for the accused to marry A was denied by N in evidence. The story that N did this as a reward for the accused agreeing to keep her flirting with the boy from Are Are a secret was also denied by N in evidence. These stories were denied by A in cross-examination. In fact, she said that she was not even aware of any such arrangement.

In cross-examination, she denied the suggestion that the way to prove her commitment to marrying the accused was to have sex with him. She refuted the suggestion that she was lying to the Court. She also refuted the suggestion that the marriage arrangement had been discussed between N, the accused and herself. There is therefore no basis for consent by A as alleged by the accused.

In her own words in cross-examination, she said-

“When we had sex, I was wearing brown trousers with flowers. It has elastic waist band. To remove it, you just pull it down. It has no zipper. I did not close the door because I was ashamed. We were by ourselves. N was staying with the baby. I did not call her into the room. Josiah forced me to be cured by massaging. He asked me to be massaged that is why I agreed. I did tell N that I was not willing to be treated. She said why I was not willing. I said I had a different thought. I told N I did not want Josiah to treat me. I said I did not want it because I did not have any sick...”

A was perfectly right. She did not have any sickness. She could sense the danger that lay ahead. However, N thought otherwise because of her concern for A’s marriage prospect being in jeopardy. Unfortunately the accused confirmed N’s anxiety over the welfare of A by saying that A had been poisoned by an ex-tasiu. N was unknowingly playing into the hands of the accused. The accused had abused her and A and then raped A. N only came to her sense when she saw the accused having sexual intercourse with her sister in her own house. She became furious with A but that was not A’ fault. It was her fault. It took her two days to reconcile her guilty conscience before she reported it to her husband and eventually to the Police.

The blame had moved from A to the accused and that is why the accused was asked to pay compensation. N had realized her mistake and turned against the accused. This is not to say that she was framing up the accused but that he should be reported to the Police for having abused them as a custom medicine man.

Conclusion.

The shaking of the house that attracted the attention of N might have been due to the accused’s sexual movements and the possibility that there had been a struggle to subdue A and A trying to get up and off from the accused. What N saw of them was just a part of the scene. She did not see the whole scene from the start to finish.

The accused’s explanation of A being the pawn of the marriage arrangement between himself and N is preposterous. I do not believe him. N caught the accused in the act and that is corroboration of A’ evidence. The lack of consent is a state of mind and can be established only by evidence. I am satisfied beyond reasonable doubt that the accused had sexual intercourse with A without her consent. Clearly, the accused was over-tempted by the sight of A being naked before his eyes and having inserted his finger into her vagina, decided to have sex with her then and there. His penis must have already been in an erect position when he asked A for sex. He could not stop it and so he went all the way, quite oblivious to A’ lack of consent. I find him guilty as charged and convict him accordingly. I enter a verdict of guilty for rape.

Frank O. Kabui
Puisne Judge