Regina v Romane [2005] SBHC 28; HCSI-CRC 144 of 2004 (13 December 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 144 of 2004

REGINA

–v-

STEPHEN ROMANE

(KABUI, J.).

Dates of Hearing: 11th, 12th, 13th 14th, 17th, 18th, 19th, 20th, 21st, November and December 6, 7, 2005.
Date of Judgment: 13th December 2005.

H. Kausimae for the Crown.
L. Kershaw for the Accused.

JUDGMENT

Kabui, J. This case had been fought on two fronts. Firstly, the complainant was said to be incompetent to give evidence on the ground that she was mentally retarded. Secondly, the complainant’s dock identification of the accused was unsafe and unreliable. The defence had fought the issue of dock identification tooth and nail.

I will return to these points later in this judgment.

The accused is Stephen Romane. He was charged with raping or in the alternative, indecently assaulting Anita Saognuku between 18 and 19 February, 2004 in Honiara. He pleaded not guilty to both charges on arraignment. The Crown has to prove beyond reasonable doubt these charges against the accused. The accused remains innocent until proven guilty by the Crown.

Description of the complainant.

Anita Saognuku is a young girl under eighteen years but suffers from mild mental retardation. She is the last born in her family. She does not go to School but can write her name though cannot read. However, she can wash herself and eat without being assisted. She stays in the house but does no housework. She can speak her mother tongue and Pidgin English. She can communicate without any difficulty. She understands the difference between right and wrong and can talk sensibly to people though her general behaviour easily reveals her mental condition. She has a reasonably good memory of past events.

Her competence to give evidence in Court was challenged.

Her competence to give sworn evidence was challenged by the defence on the ground of her mental condition. I ruled against that challenge and allowed her to give sworn evidence which she did and with which I am satisfied.

Her story to her mother.

Her mother had discovered that she was missing in the evening on 18th February 2004 from the house. Her parents then began the search for her all night but without success. She arrived back the next morning and was in the laundry when she was located. Her mother immediately called her into a room in their house and asked her questions about her whereabouts the night before. She told her mother that she had gone with Stephen and he spoiled her twice.

Her full story.

In the evening of 18th February 2004, a man by the name of Stephen arrived by taxi at her house at Lenggakiki. She was inside the house when a neighbour, Vincent Isa, called her to say that there was a taxi waiting. She came out and learned that Stephen had come for Gara, her sister. She went to Stephen and Stephen said he wanted to see Gara or something to that effect. There were other men in the taxi with Stephen. They were drinking beer. She told Stephen that she did not know where Gara was or where she had gone. Stephen told her to go and look for Gara but she refused. Stephen then suggested that she go with them in the taxi to find Gara and then she and Gara would be returned to the house together. She said that her parents would be looking for her if she went with them. Stephen insisted and finally she went with them in the taxi.

The taxi went to town but they did not find Gara. She asked that she be dropped back to her house but this was not done.

Instead, the taxi came to a stop behind a house. Stephen then opened the door and went inside the house. He then called her to go inside the house and she did.

He told her to go inside his room and she did. He then left the room briefly and returned bringing with him food. He offered her food but she refused to eat. He then told her to undress and she refused. She asked him to take her back to her house but he said he would take her back in the morning. He then asked her to lie down and she did and wanted to sleep. He then told her to go and have a shower which she did. She returned and lay down. He went on top of her and lay on top of her. She told him to get off her but he refused. He undressed her and pushed his penis into her vagina. She felt his penis inside her vagina. Then he went to a shop to buy smoke. When he returned he went on top of her again. She told him to get off her so that she would wash her face but he refused. He made love bites on her breast and lips and then had sex with her. Stephen later dropped her back on the main road near her house in the early hours in the morning. Stephen told her that he would come back for her again on Friday.

Identification of the accused was contested by the defence.

This case either stands or falls on the issue of dock identification. There is no dispute that the man who took away the complainant in a taxi was Stephen. The complainant often saw him at her house on previous occasions when Stephen used to drop off her aunty at the house. That Stephen was not a complete stranger to her. It was that same Stephen who had sexual intercourse with her without her consent on the night of 18th February 2004 inside his room behind the Variety Smart Shop building. There is no dispute that Stephen lived in a room behind the Variety Smart Shop. There is no dispute that the complainant, her mother and sister went to where Stephen lived and then returned to the Police Station to make a report to the Police. There was however no identification parade mounted by the Police to enable her to confirm her recognition of the accused in the dock as being the same Stephen who had sexual intercourse with her without her consent. However, she recognized the accused sitting in the dock as being Stephen, the person who took her in the taxi and later had sexual intercourse with her without her consent.

Questioning by the trial judge.

After the close of re-examination by Counsel for the Crown, I (the trial judge) asked the complainant a number of questions, one of which was whether or not she was able to identify Stephen if she saw him again and she said yes. At that point, Counsel for the defence objected to my asking any more questions about identification. After addresses by both Counsels, I ruled against the defence’s objection. I then repeated the next day the same question whether the complainant would be able to identify Stephen if she saw him again and she said no. I asked whether she could see Stephen anywhere in the Court and she pointed him out in the dock.

Counsel for the defence in a no case to answer submission, attacked her dock identification as being unsafe and unreliable and the Court should reject it and acquit the accused. Counsel argued that the Crown never asked her about the identification of the accused during her evidence in chief. Counsel argued that when I (the trial judge) asked whether she would be able to identify Stephen if she saw him again she said no and yet she identified the accused in the dock when I (the trial judge) asked her whether she would see Stephen anywhere in the court room and she pointed to the accused in the dock. Counsel argued that her behaviour was indicative of being unsure of the correct identity of the accused.

I rejected that argument at that stage and ruled that there was a case to answer and proceeded with the trial.

The case for the defence.

After the Crown closed its case, the defence called no evidence. The accused had exercised his right to remain silent.

The defence maintained the same line of argument in their closing speech. Can it then be said that her dock identification is unsafe and therefore unreliable?

Counsel for the defence said, indeed, it was unreliable for the following reasons. Firstly, the dock identification was the first since the offence was committed. Secondly, it was dark when the complainant saw Stephen at her house at Leggakiki, whilst in the taxi and in the house where Stephen lived. Thirdly, in the course of further questioning by Counsel, she reduced the number of times she saw Stephen dropping off her aunty at her house at Leggakiki and the quality of her familiarity was therefore lessened. Fourthly, she was not able to describe Stephen to the Police at the Police Station. Fifthly, she did not describe Stephen in court when asked. Sixthly, she identified the accused on the third day of the trial. Furthermore, her dock identification was not supported by any other evidence.

The above reasons advanced by the defence are not disputed.

Counsel’s argument in the words of the High Court of Australia in R. v. Davies and Cody [1937] HCA 27; (1937) 57 CLR 170 is that-

“if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. This tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question.”

This is the crux of Counsel’s argument. It is a powerful argument. In addressing this argument, I would however say this.

After I, the (trial judge), ruled against the no case to answer submission, I recalled the complainant into the witness-box. I asked her a few questions pertaining to the identity of Stephen. Counsel for the defence asked for an adjournment of one hour to prepare her questions which I granted. Counsel then commenced a lengthy questioning of the complainant on the issue of identification of the accused. In the questioning by Counsel, the complainant maintained that she had seen Stephen come to her house about ten times. She was not however able to describe in detail how she was able to recognize Stephen each time he came to her house, what vehicle he came in, how far it parked from her house, whether it had tinted glass or not, whether Stephen went inside her house and where she was sitting when she made the sightings. In my view, this sort of response is expected in this sort of case because she would have had no reason to consciously record the details of Stephen each time he arrived at her house to drop off her aunty. It is also unrealistic to expect her to note down the details of Stephen each time he arrived at her house. The fact is that she had noticed Stephen at her own time and in her own way. She always stays home for obvious reason. She never goes out regularly. When asked why she did not describe Stephen to the police at the Police Station, she said she did so to the Police but they did not write it down. It is not disputed that she can write her name, but she cannot read. She agreed that the Police did not show her any photographs of Stephen or took her to any identification parade. In her own words under questioning, she said-

“The man I went with and who used to drop my aunty is the same man. I normally saw him in the taxi. It is not a mistake that it is not the same man who I went with is the same man who used to drop my aunty.”

This answer was her response to a suggestion put to her by Counsel after she had identified the accused in the dock. She said Stephen used to drop her aunty by taxi. Clearly, the identity of Stephen had a permanent imprint on her memory well before she was taken for a ride by Stephen in the evening of 18th February 2004 from Leggakiki.

When she was confronted by her mother the next morning, she told her mother that she had been with Stephen. If she had not been able to identify Stephen or had no memory of Stephen’s identity, how could she have said to her mother that she had been with Stephen the previous night? She could have said she had been with someone she did not know by name or appearance. She did take her mother to where Stephen lived before they went to the Police Station to make a report.

Stephen was also at the Police Station. Because Stephen chose to remain silent, he was not asked how he got to the Police Station and why was he at the Police Station.

Such explanation would have been crucial for obvious reason. This same Stephen was interviewed by Sergeant Florence Taro, (CW8) who identified him in the dock as being the accused. This is the same Stephen who was identified in the dock by the complainant as being the Stephen who took her in the taxi and had sexual intercourse with her without her consent. The Stephen identified in the dock as the accused is dark-skinned.

When Stephen arrived at the complainant’s house, the first person he spoke to was Isa. Stephen asked him about Gara. Isa went to call her but she was not to be found. Instead, Isa told the complainant that a man in the taxi, Stephen, wanted to see her. The complainant then went to the taxi. Isa could not describe Stephen but said he was dark-skinned. The accused identified by the complainant as Stephen in the dock was the same Stephen who took her away and did wrong to her twice. He is dark-skinned. The reason why the complainant went with Stephen in the taxi was because he was the Stephen she knew who used to come to drop her aunty at her house.

She had told Stephen that her parents would be cross if she went with him but Stephen persuaded and assured her that he would bring her back to her house. She sat with Stephen in the taxi whilst cruising along the road, supposedly to look for Gara, her sister.

The complainant’s evidence of dock identification must be understood and assessed by the Court in the prevailing circumstances of this case.

In considering the argument against identity, I must bear in mind that according to the medical evidence, the complainant is mentally retarded and has a low level of concentration. However, she has good memory of things already stored in her memory though recalling recent things is not easy.

She was conscious of her situation and so she asked whilst inside the taxi that she be dropped back at her house as promised by Stephen. Her request was not granted.

On arrival at Stephen’s place, only Stephen and the complainant went inside the house and into Stephen’s room. She said that there was no light in the room. She knew Stephen from her previous knowledge of him and the fact that Stephen had brought her that night into his room. Stephen and the complainant stayed together for the whole night. Stephen climbed on top of her twice that night when having sex with her. She is not a blind person. She knew who Stephen was all along up to her identification of him in the dock. There is no evidence that she had only a fleeting glance at him or the time spent inside the room was too short for her to see him properly.

The contradiction in answer to one of my questions about identity of the accused was a result of my asking the question in an inappropriate way. I should have asked a series of short questions leading to the dock identification. In fact she answered my question correctly in the first place but when I repeated it after my ruling, a day later, she answered in the negative. She was clearly confused by the court procedure at play at that time. Her dock identification taken in the context of all the evidence adduced by the Crown would not in any way destroy the Crown case. The identification evidence having been assessed against the whole of the evidence can easily stand as being safe and reliable in this case. I have warned myself of the risk of accepting dock identification as being fraught with danger. In my view, the dock identification by the complainant can be accepted in the circumstances prevailing in this case.

In R. Preston[1961] VicRp 115; , [1961] V.R. 761, Lowe, J. said-

“There is no rule of law that the evidence of one witness as to identification is insufficient, nor is there any rule of law that there must be a police parade for the purpose of identification, nor is there any rule of law that in every case a warning must be given; it all depends upon the circumstances of the case before the court.”

The circumstances of this case are such that the complainant’s dock identification does have probative value and I accept it accordingly as being safe and sufficient as part of whole of the evidence against the accused.

The rape allegation against the accused.

The evidence given by doctor Vavala, (CW7) does confirm that penetration of the complainant’s vagina had taken place. The evidence by Alarky, (CW9) confirms the presence of sperm from a swap taken from vaginal fluid from the complainant and tested in the laboratory in the Central Hospital. Doctor Vavala examined the complainant on the 19th February 2004; the day after the accused had sexual intercourse with the complainant. There is no doubt that sexual intercourse did take place and the accused was the person who had sexual intercourse with the complainant, allegedly without her consent. I find that this is a proven fact.

The lack of consent by the complainant.

This is a very difficult point in this case. It is difficult because the complainant is mentally retarded but nevertheless she is able to tell right from wrong. To that extent, she may be regarded as being capable of giving consent or not giving consent to having sex with the opposite sex. Again, the circumstances of this case will throw light on her state of mind at the relevant point in time.

The starting point is that she had not planned to go with the accused on the night of the alleged rape. She is a mild mentally retarded person. She was persuaded by the accused to go into the taxi with him and the other men. The motive for going into the taxi came from the accused. The accused told the complainant that they were going to look for Gara. The complainant did not know why they were looking for Gara. Apparently, the accused must have known Gara. This is not surprising because the accused had often dropped of the complainant’s aunty at her house and must have been familiar with Gara. Beyond that, no one knows.

The taxi left without its destination being known by the complainant. The complainant did not know in which direction the taxi was going. They did not find Gara. She asked to be dropped back at her house whilst they were traveling in the taxi but was not done. After sometime, they arrived at the house occupied by the accused. The accused opened the back door and went inside first and then called the complainant and she followed him inside the house and into the room. The accused went somewhere and then returned with food which he offered to her but she refused to eat.

The accused told her to undress but she refused and told him to take her back to her house. The accused refused and said he would drop her in the morning. The accused told her to lie down which she did. She wanted to go to sleep. The accused woke her up and told her to go and have a shower which she did. After she returned from the shower, she again lay down. The accused was inside the room. The accused then lay on top of the complainant. She told him to get off her but he refused. He told her to get on top of him but she refused because she wanted to go to sleep. She was wearing trousers, bra, pant and a shirt. The accused then got off her. His clothes were still on when he got off her.

After that the accused took off her clothes and then took off his clothes. The accused then pushed his penis into her vagina and had sex with her. After that the accused went off to buy smoke. She went to sleep when the accused was away. The accused returned to her and woke her up. She woke up. The accused spoke to her but she was not paying attention. She was still lying down when the accused went on top of her again. She told him to get off her so that she could wash her face but he refused. He then had sex with her. She said that the accused bit her breasts and lip. She said she did not like what the accused was doing to her.

No force or threats had been used on the complainant by the accused nor was there any question of fraud or false pretence involved. The sole issue is one of submission. Was her submission consent or not?

The issue of whether she in fact told the accused to get off her when he was on top of her on each of the times he had sex with her was heavily contested by Counsel in cross-examination. She maintained her evidence in cross-examination and then contradicted it. My observation of her was that she was confused due to the way in which the questions were being asked of her by Counsel repeatedly. That is, she had given the correct answer and then being asked repeatedly suggesting that her answer was wrong and rather putting the desired answer in her mouth. I think that is an unfair way of cross-examining, particularly in this case where the complainant is a mentally retarded witness. That is, the truth being turned into a contradiction by twisted questioning riddled with double negatives. The fact that the manner of questioning by Counsel was not objected to by the Crown was an oversight. According to the medical evidence, she has good memory of remote things which has already been stored in her mind. I do not doubt the credibility of the complainant to give truthful evidence. The accused refused to give his side of the story so that his credibility can be tested.

Counsel argued that the complainant could have escaped from the accused or called for help. My observation of the complainant is that she is docile and rather immature in outlook. Although she is seventeen years old, she is still bed wetting. The source of this information is her mother who had been interviewed by Mr. Same of the Mental Health Services and stated this in the medical report submitted to the Court.

This case presents difficult facts which cannot easily be cast into the common mold of rape cases. Is it rape where the accused confines the complainant in a house and has sex with her with alleged consent in circumstances where escape is possible but is not practical because of the circumstances of the confinement and other factors?

My approach in this case is based upon the judgment of Dunn, L.J. in R. v. Olugboja [1981] EWCA Crim 2; [1981] 3 All E.R. 443 in which the Court of Appeal in England(Criminal Division) said that submission may involve consent but a mere submission does not necessarily involve consent. It stated that in cases where non-violent threats had been used to obtain consent, such consent was no consent. In this case, the accused used no threat at all. In fact, there was no aggressive attitude at all demonstrated by the accused towards the complainant. The conduct of the accused was passive but it yielded the intended consequence.

I am however attracted by Dunn, L.J.’s statement at 449 where His Lordship said-

“...The jury “should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the circumstances, and in particular the events leading up to the act, and her reaction to them showing their impact on her mind Apparent acquiescence after penetration does not necessarily involve consent, which must have occurred before the act takes place...”

His Lordship then continued-

“...the jury will probably be helped in such cases by being reminded that in this context consent does comprehend the wide spectrum of states of mind to which we have referred, and that the dividing line in such circumstances between real consent on the one hand and mere submission on the other may not be easy to draw. Where it is to be drawn in a given case is for the jury to decide, applying their combined good sense, experience and knowledge of human nature and modern behaviour to all the relevant facts of that case...”

R. v. Olugboja cited above does have very persuasive authority. Leave to appeal to the House of Lords against sentence was refused. The Appeal Committee of the House of Lords consisting of Lord Diplock, Lord Keith of Kinkel and Lord Bridge of Harwich dismissed a petition by the appellant for leave to appeal.

Granville Williams, Q.C. LL.D, F.B.A. in his book, Text Book of Criminal Law, Second Edition, 1983 has however criticized the approach in R. v. Olugboja cited above at pages 553-554 as giving the jury great latitude without any real guidance. He had earlier made the same criticism in an article entitled, “Consent and Public Policy” published in the Criminal Law Review in 1962, referring to Lord Devlin’s Maccabaean Lecture of the British Academy in 1959 on the topic, “The Enforcement of Morals” as authoritarian philosophy of morals.

However, at page 238, he says this about the offence of rape-

“...The facts of life make consent to sexual intercourse a hazy concept. It poses grave problems of proof and justice...”

The grave problem of proof and justice in a rape case is what this case is all about.

Be that as it may, I sit as a trial judge without a jury. I am the judge of facts as well as of the law in the trial and I must find where the truth lies and act accordingly.

Disorientation, confusion and submission.

The complainant stated in evidence that the first time she ever went out with someone was with the accused in the taxi. She did so rather reluctantly being assured that they were looking for Gara and the promise by the accused that he would drop her and Gara back at her house. She said that she did not know in which direction they were going. Her request for the occupants in the taxi to drop her back at her house shows that she did not want to continue staying in the taxi. She became disoriented in the course of the journey in the taxi. She was a girl sitting in the midst of several men in the taxi including the accused whose overall motive of taking her away from her house in the night was not clear. Allegedly looking for Gara might have been a pretext for her to go with the accused. If she had the feeling of anxiety and fear I would not blame her. The men in the taxi were drinking alcohol. Being in a taxi at night with men who were cruising along the road in that taxi without any stated destination can be a confusing and worrying experience.

If any one in the taxi who had any concern for her welfare and safety, it must be the accused. He was the one responsible for her being in the taxi. He was supposed to be her protector because she knew the accused. The accused made her to trust him and so she went with him.

There was no reason for the accused to break his promise to return her to her house after they failed to locate Gara. One wonders whether the accused was telling her the truth that they were indeed going to look for Gara or was it an excuse to take her as a substitute for Gara. This is relevant because on discovering that Gara was not at her house, the accused remarked to the other occupants in the taxi in these words in Pidgin English, “Bad luck now boys”, meaning in English, “It is bad luck boys.” Clearly, they had come to collect Gara for whatever reason but she was not at home. The complainant had told the accused that she did not know where Gara had gone. They should have gone back but instead the accused took the complainant away.

Clearly, the complainant did not have the slightest idea why the accused took her into his house. It was night time. In fact, she asked the accused to drop her home when they were in the room in the accused’s house but the accused told her that he would drop her in the morning. She was clearly vulnerable without the presence of Gara and I believe she knew it. Why then did the accused have to keep her without her consent in the house? In cross-examination, she said-

“...He asked me to eat but I refused. I stayed in the room. I did nothing in the room. The man told me to take off my clothes after he brought the food. I refused to remove my clothes. I did not say anything to him. I told the man to take me back to the house after he told me to take my clothes off. The man said he would take me back in the morning...”

This conversation is important because it shows her state of mind of being reluctant to be naked and having sex with the accused. She refused to undress and then told the accused to take her back to her house. That is evidence of lack of consent.

In examination in chief, she said she went to sleep after she had told the accused to drop her back and he said he would drop her in the morning. The accused was also lying down with her then. She said the accused then went to have his shower. He came back and told her to have her shower which she did. When she returned, she lay down on the mat. The accused was already down on the mat on the floor. She said she had her clothes on. The accused was wearing trousers. It was then that the accused went on top of her. She rebuffed him by telling him to get off her. At first he refused but then got off her. She said the accused removed her clothes and then removed his trousers and had sex with her. This was the first incident of having sex.

Clearly, the complainant again did not consent to having sex with the accused but the accused succeeded in any case because of his obvious insistent and soft manipulation of the complainant. The fact that he did not listen to her objections to having sex with him and yet proceeded against such protest speaks volumes in this case.

After they had sex, the accused went off to buy cigarette. The complainant again went to sleep. The accused again woke her up after he returned from the shop. He lay on top of the complainant again. Again, she told him to get off her so that she could wash her face and he refused. The accused kissed her and bit her breast. She said she did not want what he was doing to her. The accused again had sex with her. After that he told her that he would drop back at her house. Here again is evidence of lack of consent on her part.

Whilst the accused was abusing the complainant in his room, the complainant’s parents were looking for her everywhere all night. They never went to sleep that night. The complainant’s mother said that she and her husband were very worried because the complainant was an abnormal child and had not gone out with anyone before. They had been worried about her welfare and safety.

Conclusion.

The fact that the accused elected not to give evidence may be a factor against him. However, that is a matter for the jury in countries that have jury trials. In commenting on the remarks of Lord Goddard, C.J. in Reg. v. Jackson [1953] 1 WLR 591 at 595, on the question of silence by the accused and the reason or justification for commenting by the judge to the jury, Lawton, L.J. said at 493-

“...The reason lies in common sense. An innocent man who is charged with a crime, or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened. Juries know this, and they must often be perplexed as to why they should not be told by judges, as they have been since the passing of the Criminal Evidence Act 1898, that when considering their verdict they should not take into account the fact that the accused had said not a word in his own defence though the case against him is a strong case. The law, however, sets limits upon what judges may say about an accused’s election not to give evidence. Our task is to adjudge whether the trial judge went too far in this case...”

His Lordship continued at 496-

“...What is said must depend upon the facts of each case and in some cases the interests of justice call for a stronger comment. The trial judge, who has the feel of the case, is the person who must exercise his discretion in this matter to ensure that a trial is fair. A discretion is not to be fettered by laying down rules and regulations for its exercise...What however, is of the greatest importance in Lord Parker C.J.’s advice to judges is his reference to the need to avoid telling juries that absence from the witness box is to be equated with guilt...”

In this case, I am the judge and as well as the jury at the same time and therefore wearing two hats in terms of jury direction. On the one hand, I am the judge, and on the other, I am the jury. I suppose I will direct myself in that regard. I think the rule is that I must not comment upon the accused’s election not to give evidence if the case for the Crown is so weak that such comment is likely to make the difference between a conviction and an acquittal. I can however comment if the election by the accused leaves a lot to be desired against the weight of the evidence against him.

In this case, the accused’s attendance at the Police Station and why he had come to the Police Station and eventually interviewed about the offence of defilement initially, should have been explained by him. Also, it would have been expected of him to counter the allegation of rape against him. To remain silent against the weight of evidence against him can therefore be safely inferred that he had something to hide, the truth.

The facts of this case are not the same as the facts in R. Olugboja cited above. There was no fear in the mind of the complainant because she knew who the accused was. The accused posed no physical threat which would have caused fear to the complainant. But one thing is clear in her evidence. She did not want to have sex with the accused. That is the crucial point in this case. As I have said, my observation of the complainant is that she is docile, inarticulate and slow but is able to tell the truth. The accused, on the other hand, is a matured person previously known to the complainant. He manipulated the complainant by causing her to be disoriented, then became confused and inevitably submitted to his intention without her real consent. She had clearly told him that she had no intention to have sex with the accused and refused to do so in spite of his success.

I have, in this case, drawn the line spoken of by Dunn, L.J. in R. Olugboja cited above in favour of the Crown using my good sense, experience and knowledge of human nature and modern behaviour in the circumstances of this case sitting as a judge of facts as well as of the law. The Crown has proved it case beyond reasonable doubt.

I find the accused guilty of rape and convict him accordingly. I enter a verdict of guilty.

F.O. Kabui
Puisne Judge