Regina v Raha - judgment [2005] SBHC 70; HCSI-CRC 124 of 2004 (31 May 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 124-04

REGINA

-v-

GEORGE RAHA

Date of Hearing: 9th May, 11th, 12th, 18th May 2005
Date of Judgement: 31st May 2005

P. Little and R. Iomea for the Prosecution
C. Ashley for the Defendant

Palmer CJ.: The accused, George Raha (hereinafter referred to as "the Defendant") has been charged with three offences as follows:

Count 1: Rape contrary to section 137 of the Penal Code

Particulars of Offence: That on the 22nd September 2000 he raped Christina Odogasia.

Count 2: Indecent Assault contrary to section 141 of the Penal Code.

Particulars of Offence: That on the 22nd September 2000 he did indecently assault Christina Odogasia.

Count 3: Assault Occasioning Actual Bodily Harm contrary to section 245 of the Penal Code.

Particulars of the Offence: That on 22nd September 2000 he did assault Christina Odogasia occasioning bodily harm.

All the offences were alleged to have occurred in the early hours of the morning on the same day. The Prosecution says that the Defendant returned home around 3.00 am in the morning drunk, argued with his wife Jemima Rowe (hereinafter referred to as "R") and chased her causing her to flee to take refuge in a neighbour’s house. The Defendant then knocked at the door of Christina Odogasia (hereinafter referred to as “the Victim”) and when she opened the door, asked to have sex with her. When she refused he assaulted her on the mouth causing bruising and cuts to her lips. He then pushed his penis into her mouth and told her to lick it. After this, he did the same to her. He then raped her. Prosecution says these were all done without the consent of the victim.

The defence on the other hand says these were all consensual acts, apart from the allegation of sexual intercourse which they say did not take place although they tried. Defence says they hugged and kissed each other before committing those consensual sexual acts together. The Defendant denies any sexual intercourse as he was too drunk to get any erection. He asserts that after kissing they tried to have sexual intercourse together but because he couldn’t get any erection he went down between the legs of the Victim and licked her. She then pulled him up and they tried again to have sexual intercourse but couldn’t. He then pushed his penis against her mouth and rubbed it against her mouth to try and get an erection. They tried again to have sexual intercourse but failed again. He then lied down in her room and went to sleep.

The Prosecution case is contained basically in the evidence of all the witnesses called. The Defence case on the other hand consists entirely of the evidence of the Defendant which he voluntarily elected to give under oath.

The Defence does not dispute that R left their residence ("the Residence") shortly after the arrival of the Defendant and stayed in the house of a neighbour. They also do not dispute that the Defendant was drunk on his arrival.

Prosecution called a total of four witnesses and submitted six witness statements by consent of the Defence. The first statement is that of Edward Soaki dated 23rd December 2003 ("Exhibit 1"). The second statement is that of the Doctor who performed the medical examination of the victim, dated 2nd October 2000 ("Exhibit 2"). The third statement is that of Florence Taro dated 17th October 2000 ("Exhibits 3/1 and 3/2"). The fourth statement is that of Walford Devi containing photographs taken at the scene ("Exhibits 4/1, 4/2, 4/3"). The fifth statement is the second statement of Florence Taro dated 21st June 2000 ("Exhibit 5"), and the sixth statement that of the Defendant ("Exhibit 6").

The first prosecution witness Janet Molia, ("J") is the neighbour of R. She lived about 15 - 20 meters away from their Residence. She told the court that R came to her house and knocked on her door between 3-5 am in the morning. When she opened the door, R rushed in. Not long after that they heard somebody screaming coming from the Residence. It was a female voice. She estimated the time they heard the crying and screaming as about 5 - 10 minutes after the arrival of R. She also heard and recognized a male voice at the same time saying “shut up” and the same male voice talking for sometime. All those noises were coming from the Residence. Some 10 minutes later, the Victim also ran to her house. She was crying and appeared quite upset. She noticed that the Victim had swelling on her face and on her lower lips. She heard the Victim and R conversing together in their language.

Under cross examination, she told the court that R told her that she had been chased out of the house by her husband (the Defendant).

She told the court when R arrived both she and her kept looking and listening out when they heard screaming coming from the Residence as R was quite worried about her child and the Victim, who was their house-girl. R had left the house without her little daughter. Under cross examination, J maintained her view that the screaming heard came from the Residence. When asked to describe what she heard further, she described the cry and scream as being not very clear. She could not recall if the child was crying or not at that time. She described the screaming as lasting for some 3-5 minutes before it stopped. When asked about the time lapse before they heard the screaming she estimated it as about 10 minutes. She estimated the time of arrival of the victim as at about 5.30 am.

The second witness who gave evidence was Kathy Balko ("K"). She resides in the same house as J and confirmed that the Defendant and R were neighbours. Their house was not very far from them. She confirmed that R arrived at their house that night. She told the court that she opened the door for R when she knocked at the door. She then went back to sleep. She says that she woke up again when the Victim arrived at the house; she estimated the time was 5.30 am. The Victim spoke with R and noticed that she looked frightened and was crying; she did not notice anything else though about her face.

Under cross examination she stated that she went straight back to sleep after R arrived at the house. She woke up again when the victim arrived at the house. She maintained the victim was crying and frightened when she arrived at the house.

The third prosecution witness called was the Victim herself. She told the court that the Defendant knocked at her door and when she opened it he hit her mouth. She shouted on being punched, felt dizzy and eventually ended up on the floor. The Defendant climbed onto her, sat on top of her and pushed his penis into her mouth. After doing this, he took her clothes off and licked her. He then raped her until he ejaculated. The victim told the court that she did not want to do those things with the Defendant.

She told the court that the Defendant punched her when she told him that she did not want to do those things with him. She also told the court that she shouted out loudly when punched and called out for her mother.

After he left her, she wore her clothes and went and looked for R and found her at J’s house. She estimated that it took about four minutes from the time the Defendant left her to the time she spoke with R. When she spoke with R she told her everything the Defendant had done to her and that it was without her consent.

In cross examination she told the court that she was still asleep when the Defendant knocked at her door and woke her up at about 3.30 am. She agreed she was not aware of what was happening earlier.

In cross examination the Victim denied any suggestions that the Defendant asked her about the whereabouts of R or that he told her that he liked her and that she had responded by saying that she was afraid of his wife. She denied being told by the Defendant not to worry about being found out by R. She denied kissing or hugging with the Defendant in her room.

When it was suggested to her that he never punched her, she called him a liar. When asked to describe how hard the punch was she described it as hard and that it caused her mouth to bleed.

It was suggested in cross examination that she was wearing a pant and that she consented to remove her pant herself before the Defendant licked her. The victim however maintained that she was not wearing any pant that night.

The Defence also sought to suggest to the victim that because the Defendant couldn’t get any erection that night, not only could they not have had sexual intercourse but that this explained the reason why he had put his penis into her mouth. It was suggested to her that she consented to lick his penis to assist him get an erection so that they could have consensual sexual intercourse. The victim denied these. She told the court that after the Defendant punched her in the face, he pushed (implying force and without consent) his penis into her mouth. She also told the court she did not consent to him licking her vagina but that he pressed (implying force and without consent) himself onto her. She denied any suggestions that she removed her clothes herself.

When it was suggested to her that because his penis was not erect, he could not have had intercourse, she remained firm that there was coitus. She told the court that the intercourse took sometime and that the Defendant ejaculated in her. She repeated this under cross examination. She left to look for R when the Defendant returned to his room.

Learned Counsel for the Defendant Mr. Ashley sought to suggest to the victim that in her second statement made on 20th December 2003 she had told Police that she went to the bathroom and washed herself before going to J’s house. The victim denied this but pointed out that before she went to the police station she had her bath. She told the court that she had her bath when she went to her father’s house.

It is important to bear in mind that what she stated in cross examination is actually consistent with what she had stated in her statement. I quote:

"That soon after George Raha had forced sexual intercourse with me. I went to the bathroom and washed or clean myself before I went with Jemimah to the Police Station. Further to that, before I was examined by the doctor at Central Hospital."

The victim did not say that she had her bath before going to Janet’s house.

Under cross examination it was sought to be suggested to her that the reason why she reported the matter to R was because she was frightened of her but that she had in fact consented to it. In response she denied this and said that she did not like it. She denied any suggestions that the Defendant fell asleep in her room and that she had woken him up and told him to return to his room.

Under re-examination she explained that initially the Defendant’s penis was not strong but that later it became strong.

The next prosecution witness called was Jemima Rowe, the wife of the Defendant ("R"). She confirmed that the Defendant came home at about 3.30 a.m. and woke her up. He was drunk and chased her causing her to run out of the house to J’s house. She spoke with J and told her what had happened. She then heard the victim screaming from her house and her baby crying. She also heard the Defendant talking but could not make out exactly what he was saying. The victim then came to the house. She told the court what the victim told her happened. That the Defendant had banged the door, consistent with what she had heard and had told her to open the door. He then asked to have sex with her. When she refused he punched her on the face. They then had sex but this without her consent; she was forced into it. R told the court that the victim looked frightened, was trembling or shaking and that her speech was not normal. She also described her appearance as "panicked". She was also crying when she spoke with her and had lacerations on her lips with spots of blood.

Under cross examination she maintained that the Defendant was drunk and chased her around. She told the court that when the Defendant comes home drunk he usually beats her. She denied telling the Defendant to go back where he had come from or telling him to return when he walked off. She told the court that the baby was still asleep at that time.

She estimated the time before the Victim came to J’s house as not too long, about less than half an hour. She says she was awake at that time together with J and K. She denied any suggestions that the victim may have had her bath before arriving at the house. She explained in court that as a nurse she had asked the victim not to wash herself before they went for medical examination.

The Defendant elected to give oral evidence under oath. He told the court that he arrived sometime after midnight. He knocked at the door but there was no response and so called out to his wife to open the door. He says instead of opening the door she told him to go back to where he had come from. He begged her to open the door but she refused. He then told her that he was going to his brother’s place and walked off. She called him back but when he entered the house she left through the back door without saying anything to him. He denied there was any disagreement between them that time. He also denied any suggestions that whenever he returned home drunk he would bash her up. He says he tried looking for her but could not find her as it was quite dark. He returned to the house and decided to have a bath. He changed his clothes and went outside to the sink to have his bath but became concerned for the safety of his wife and went to the victim’s room with the intention of asking her to go and check at their neighbour’s house for R. He says she opened the door when he knocked. He spoke to her in language to go and check at their neighbour’s house for R. He then noticed as there some light shining into towards the room that the Victim was wearing only a bra at that time with no shirt and that this distracted him. He then told her that he liked her. He repeated this three times and when the Victim responded three times as well by saying that she was afraid of his wife he interpreted this to mean that she also liked him. He says they hugged and kissed each other and then moved to the middle of the room. He noticed at that point of time that she was wearing a pant. They both went down to the floor together and she took off all her clothes to have sex with him. Although they tried they could not as he could not get an erection. He then licked her. After this, she pulled him onto her to have sex but again he could not get an erection. He then moved his penis to her mouth to get an erection before trying to have sex again but was unsuccessful. He then lied down on the side and went to sleep in her room. He denied ever having any sexual intercourse at that time. He says she woke him up and told him to return to his room to avoid his wife finding out about them.

Under cross examination, he denied any suggestions that the sex was not consensual.

When asked to explain what might have caused the injuries sustained by the victim, he denied any knowledge of them or punching the victim. When asked why the victim was crying, he denied this as well and said that it was the baby that cried. When it was put to him that this meant the other witnesses then were lying, he said yes. He also held that the victim had lied about what had happened. When asked to explain why the others would lie, he told the court that his wife and him had not been getting on well together. When asked what that had to do with the victim, he told the court that she was close to R and therefore would want to spoil him.

When it was put to him why she would lie about that if what he says is true that she was sexually attracted to him and consented to the sexual acts together, he told the court that she was frightened of his wife. When he was asked if this was because they had had sex together, he said yes. When it was suggested to him that there was no need to be frightened if his wife did not know about it, he said they did not have sex. When pressed further about this in cross examination he suggested that she was frightened in case his wife knew about what was happening. He further suggested that his wife might have known about it when he turned the light on as he left the room.

The relevance of the statement of Edward Soaki ("Soaki") dated 23rd December 2003 ("Exhibit 1") pertains to the period preceding the events and gives some indication as to the state of intoxication of the Defendant. According to his evidence, he arrived at the Police Club at Rove that evening around 6.00 pm. He says the Defendant was already at the Club. This is consistent with the evidence of the Defendant that Soaki arrived at the Club about five minutes after his arrival. Soaki states in his evidence that he consumed about six solbrews whilst the Defendant consumed more. He states he was affected by alcohol. He dropped the Defendant at his house but could not recall the exact time.

The second statement accepted as evidence was the report of the Doctor who examined the victim on the same date. His report is dated 2nd October 2000 ("Exhibit 2"). He observed that there were few minor cuts at the lower lips and at the lower buccal region of the mouth. He also noted that there was some pain around both hips and lower back but no obvious bruises or skin colour changes seen and no other scratch marks or skin abrasions anywhere else. There was no trace of any sperm seen and no evidence of any presence of spermatozoa from a high vaginal swab specimen that had been taken.

The third and fourth statements related to a sketch plan and photographs respectively of the scene and the fifth and six statements relate to interviews conducted with the Defendant in which he declined to say anything.

The offence of rape is defined as follows:

"Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape." - section 136 of the Penal Code (Chapter 26).

Section 168 provides that it is not necessary to prove sexual intercourse by emission of seed, it is sufficient if penetration is proved however slight¹. This is consistent with the approach of the English Courts in relation to the issue of penetration - see Randall [1991] SASC 2877; (1991) 53 A. Crim. R. 380 per Cox J. of the South Australian Court of Criminal Appeal in which his Lordship noted as follows:

"It would appear that, at least for the last 150 years, the common law, for obvious practical reasons, has made no attempt to distinguish for the purpose of proving sexual intercourse between penetration of the vulva, as denoted by the labia majora, or other lips, and penetration of the vagina itself. What little explicit authority on the point may be found in the books supports the wider notion of sexual intercourse."

The burden of proof vests with the Prosecution throughout to prove beyond reasonable doubt that the Defendant raped the victim, indecently assaulted her and caused harm to her. If any doubt is raised so that I cannot be sure that those offences occurred, the Defendant must be acquitted.

The crucial element in any rape charge is the issue of consent. It is duty of Prosecution to prove that the victim in this case did not consent. This essentially is a question of fact. In determining this issue, the court will look at what was said by the victim, her actions and behaviour and the circumstances surrounding the allegations.

The victim told the court that when she opened the door, the Defendant asked to have sexual intercourse with her and when she refused, he punched her on the mouth, causing her to be dizzy. She told the court that she shouted when punched and ended up on the floor.

The Defendant on the other hand denies punching her. He asserts that initially he asked her to go and look for his wife, but that he then became distracted by her dress and thereby asked to have sex with her. He says there was consent and that they had consensual sex together. According to his version there was no screaming, shouting or resistance from the victim and accordingly there could not have been any crying. The evidence of J, R and K however do not support his version of events. J and R both told the court that they heard someone screaming and noise coming from the Residence which not only contradicts his version but rather supports the version of the Victim. J heard a male voice saying "Shut up" and the same male voice talking. Both described the events as taking some 10-30 minutes before the arrival of the Victim at J’s house. Both J and R and K all confirmed that the Victim was crying, appeared upset and was shaking or trembling when they saw her. Both J and R saw that she had bruises and cuts on her lips consistent with the account of the Victim of having been punched on the mouth. The medical report confirmed the existence of such injury at the lower lips and lower buccal region of the mouth. Further, the Victim reported the rape immediately to R on arrival. These with respect are all consistent with the version of the Victim than that of the Defendant.

No adequate explanation has been provided by the Defendant for the cuts on the mouth of the Victim, or the noise heard by J and R coming from the Residence, or the abnormal appearance, behaviour and condition of the Victim described by those three prosecution witnesses, which I have no reason to doubt. The Defendant has provided no reasonable explanation for the Victim’s appearance and behaviour. If she had consented to those sexual acts, why would she be in tears, shaking and appearing quite upset on arrival at J’s house? It has never been sought to be suggested to the Victim that she was trying to make a scene to try and hide what had happened. That her crying, trembling and being upset were all pretensions, because that would have been the case if the Defendant’s version was accepted. It was never suggested to J, K and R either, that the Victim was making all these up and that she was never seriously/really upset. It was never put to them that they lied about the appearance and demeanour of the Victim. I accept their observations of the Victim as truthful, accurate and reliable and correctly reflected the state of mind of the Victim as communicated to R that she had been sexually assaulted and that she did not consent to those acts.

I find the explanations offered by the Defendant to be so improbable to be credible or truthful.

It would also be so unlikely, improbable, that if there was consensual intercourse that the Victim would disclose this straightaway, especially if what the Defendant says is correct that he actually fell asleep in her room before being woken up and told to return to his room. A significant time lapse would have passed, R did not know what happened and would not have reason to know unless the Victim disclosed this to her. I have listened to the explanations, more of suggestions put by the Defendant, as to why the Victim may have acted in the way she did and alleging that she had been raped, but it just doesn’t fit in at all. Why cry rape when it had all been consensual and R did not know? I have listened to the evidence given under oath by the Victim and observed her demeanour carefully in court but I cannot be satisfied that her credibility had been shaken, thrown into doubt or rendered incredulous. She remained firm throughout and when it was sought to be suggested for instance, that the Defendant did not punch her, she called him a liar.

In the cross examination of the Victim it was sought to be suggested to her that she had a bath (washed herself) straight after intercourse before going across to J’s house. No such evidence however was given in chief by the Defendant or in cross-examination to support such allegation. In her answers in cross examination though, the Victim did explain that she had had a bath first before going to the Police Station and the Hospital later that day. She denied any suggestions that she may have had any bath before going across to J’s house that morning. All three witnesses (J, R and K) all denied noticing anything that would suggest to them that she may have had a bath when she arrived at the house.

It was sought to be submitted that in her previous written statement, the Victim stated that whilst the Defendant’s penis was not erected, he kept pushing it into her vagina until she felt sperm poured between her thighs. In her evidence on oath she told the court that the Defendant ejaculated in her. It was sought to be suggested that there was material discrepancy in the Victim’s version of events. I do not accept that however as in both instances, it was clear that complete penetration occurred. In her unsworn statement, the victim expressly stated that sexual intercourse took place. Further, the fact that she stated in her statement that she felt sperm poured between her thighs does not necessarily rule out any suggestions that he did not ejaculate in her and then felt his sperm pour out between her thighs.

The medical report which indicated that no sperm was detected or seen does not rule out any suggestions that sexual intercourse did not take place. The Victim did point out that she had a bath before going to the Police Station or the Hospital. I am not satisfied that the absence of the presence of spermatozoa sufficiently contradicts the version of the Victim in this case as to whether sexual intercourse did take place or not. She remained firm in chief and in cross examination that sexual penetration occurred which would have been sufficient to establish the offence of rape. The crucial test at the end of the day is whether penetration occurred and that without consent, not emission or presence of seed. In this instance, the lack of absence of the presence of spermatozoa not crucial to the case of the Prosecution as the evidence as to whether sexual intercourse did take place and whether it was with consent or not has been quite clear.

I am satisfied Prosecution has satisfactorily discharged the onus of proof in this case, by establishing the crucial elements of lack of consent in the evidence, by what the Victim told the court had happened by her words, actions and behaviour and supported by the independent evidence of at least three witnesses (J, R and K) and that of the Doctor who carried out the medical report on him. The explanations offered by the Defendant have been so weak, ambiguous, far fetched and highly improbable to be credible and reliable. I am satisfied so that I am sure sexual intercourse occurred in this instance without the consent of the Victim.

On the issue of the indecent assault charges, the defence raised by the Defendant was that these were all done by consent of the Victim. Again I do not accept his explanations and version as to what happened. It is clear from her evidence that from the beginning she never consented to those acts and that these were forced upon her by the Defendant.

The same must be said in respect of the assault. No explanation whatsoever has been provided for the injuries sustained by the Victim on her lips. The only reasonable and logical explanation and which I accept as to how they may have been sustained is that provided by the Victim herself. The medical report confirms the existence of those injuries and that the Victim did complain about some pain around the hips and lower back, consistent with her version of events of having been forced into those indecent acts and of having been assaulted.

I am satisfied Prosecution have discharged the burden of proof in all three instances and the Defendant must be found guilty of all three counts and convicted.

Findings: (i) Count 1, Rape: Guilty.

(ii) Count 2, Indecent Assault: Guilty.

(iii) Count 3, Assault Causing Actual Bodily Harm: Guilty.

Order: Enter conviction on all three counts.

The Court.

END NOTE

1. R. v. Selwyn Sisiolo (unreported CRC 5-98) per Lungole Awich J. at page 3.