Regina v Ove [2007] SBHC 136; HCSI-CRC 203 of 2007 (31 October 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 203 of 2007

REGINA

-v-

CHARLES OVE

(Mwanesalua, J)

Hearing: 10th, 11th, 12th, 13th, 14th, 17th and 27th September 2007
Judgment: 31st October, 2007

Ms Louise Kleinig for the Crown
Mr Edward Cade for the Accused

JUDGMENT

Mwanesalua, J: The accused in this case is Charles Ove (Ove). He was charged with one count of rape, contrary to section 136 as read with section 137 and one count of indecent assault, contrary to section 141(1) of the Penal Code respectively. Ove pleaded not guilty to both counts on arraignment.

The case against Ove was that on an unknown date between the 9th and 17th of June 2005, he indecently assaulted and raped Justin Lalita in Honiara. The nature of the sexual assault alleged against him was that: he locked the outer door of the house where he and the victim stayed with Aldrin Bukiri’s family; pulled her to the living verandah of the house where he used to sleep; broke her dress and underpant; made her fall to the floor; while she was lying on the floor facing up, he separated her legs with his legs and inserted his finger into her vagina; he thrusted his finger in and out of her vagina repeatedly; and finally had sexual intercourse with her.

The Crown called oral evidence from the victim, Bukiri and Constance Ulati. In addition, agreed statements of six witnesses, the caution statement from Ove and its English translation, and the medical report on the victim were also tendered to the court. At the end of the case for the Crown, advocate for the accused submitted that his client had no case to answer on the rape charge. Advocate for the Crown agreed with that submission. It was obvious that there was no evidence of rape by the accused. He was therefore acquitted of the rape charge accordingly.

There was undisputed evidence in this case. That evidence comprised that: Bukiri worked for the Ministry of Health and Medical Services in Honiara in 2005; Bukiri and his wife Ulati and their four children lived in a government house at the Medical married quarters, opposite the National Referral Hospital; the victim was the house girl for the family and looked after the youngest child; Ove lived with the family in that house; he used to sleep in the living verandah of the house with two other boys; three of the older children of the couple attended Coronation School close to China Town;

the academic programmes at the school closed for the mid-year holidays on 9 June 2005 and the students of the school attended the occasion with their parents and cooked food.

Ulati’s evidence was that the government house they lived in had two bedrooms and a living verandah. One of the bedrooms was occupied by her older daughter and the victim, while the other was occupied by her husband, herself and three of their younger children. Three of her children attended Coronation School near China Town. In June 2005, she, her husband and their four children went to attend the school’s closing day before the start of mid-year holidays. The victim was alone in the house when they left to the school about 4 pm. Upon their return at about 8 pm, Ove was cooking in the kitchen outside the house, while the victim sat under the sago palm leaf extention to the house (see photos H and I in Exhibit 1 and Exhibit 3). In October 2005, she noted change in the mood of the victim. The victim became quieter and worried. She asked the victim if Ove had hurt her and the response was no. She later asked the victim repeatedly and eventually, the victim told her that she was indecently assaulted by Ove. In the month of October 2005, she was angry with Ove over another matter not unrelated to this case and told him to leave the house. Ove was then reported to the police for investigation in relation to the offences which he was charged in this case, months after they were allegedly committed.

Bukiri’s evidence was that Ove lived with his family since 2004 until his wife, Ulati, told him to leave in 2005. In June that year, he went with his wife and four children to attend the school closing day. They left the victim on her own at the house. Ove and the victim were at the house when they returned. They brought back some cooked food like mince meat. Ove was cooking in the kitchen outside the house, while the victim sat under sago palm leaf extention to the house (see photos H and I in Exhibit I and Exhibit 3). He, too, noted change in the victim’s mood months later. He noted that the victim did not look happy as she was, when she first arrived with the family in Honiara in February 2005. Bukiri said that his wife used to argue with Ove when he did not bring enough food to the house when he received his pay from the various employers, he worked for at different times, while staying with his family. On one occasion Ultai put Ove’s things in a bag and put them outside the house.

The victim’s evidence was that she came to Honiara with Bukiri and his family in 2005 after their Christmas holidays at Karaka Village on Vella La Vella island. Bukiri’s family left her alone in the house when they went to the school. A small girl called Kokoi came to the house wanting to use the toilet. She went to the toilet and left the house. Ove was present when Kokoi was at the house. Ove gave a five dollar note to her to buy him a roll of cigarette at a place close to the house. She did so and returned with the change and the roll of cigarette. She went into the house and gave them to Ove at the living verandah where he used to sleep (see photo O of Exhibit I and Exhibit 3). She then walked back to the entrance door to go outside. He followed her to the door and locked it (see photo K of Exhibit I and Exhibit 3), and held her mouth and hands with his hands. He then warned her not to make any noise otherwise he would cut her mouth with a small knife that was on a table close to them (see photo K in Exhibit I).

Ove then pulled her by the hands to the verandah where he used to sleep (see photo O in Exhibit I and Exhibit 3). At this spot, Ove pulled her dress, tearing it from top to bottom at the left side (see Exhibit 4). Despite this, the dress still clung to her body. Then Ove tore her underpant and made her to fall to the floor on her back by tripping her legs with his own legs.

Ove gave evidence in his defence. He agreed that he was living with Bukiri’s family in the house at the medical married quarters while the victim was there in 2005. He used to sleep on the living verandah of that house with two other persons. He went to work on the morning of 9 June 2005 and finished at 6 pm. After work he went to Point Cruz wharf and then to Kolaridge. From Kolaridge, he walked back to the house and arrived there after Bukiri, Ulati and their four children were already at the house, after attending the closing day ceremony at School. He ate mince meat and rice brought from the school by the family. He denied: being alone with the victim when Bukiri’s family was at the school in the evening after work; giving a five dollar note to her to buy cigarette for him; threatening to cut the victim’s mouth with the small knife; pulling the victim to the verandah where he used to sleep; tearing the victim’s dress and underpant at the verandah; and tripping the victim’s legs to the fall on the floor on her back.

The character of the victim’s evidence, if credible and corroborated, would constitute the offence of indecent assault.

The court will now consider the extent to which it will accept the victim’s evidence as being truthful. Bukiri and Ulati saw Ove cooking in the kitchen outside the house and the victim sitting at the sago palm leaf extention to the house at about 8 pm upon their return from the school. This sago palm leaf extention was built over the entrance door to the house. The victim never complained about being indecently assaulted by Ove when Bukiri and Ulati arrived at the house and days after afterwards. The complaint was merely raised when Ulati had ill-feelings towards Ove over not bringing enough food to the house during his pay days and his alleged gossips about Ulati, many weeks after the alleged commission of the offence on 9 June 2005. At first the victim denied being indecently assaulted by Ove when Ulati first asked her about it. However, the victim finally said that there was such an assault after Ulati repeatedly asked her about it. The small knife, the torn dress and the ripped underpant mentioned in the victim’s testimony were never exhibited to the court. The way in which the victim gave her evidence as witness did not impress the court. Most of her testimony was inaudible, riddled with long pauses, and that she failed to answer very many questions about general and vital parts of the prosecution case. The court is therefore left in doubt about the truthfulness of her evidence against Ove: threatening to cut her mouth with the small knife; tearing her dress; ripping her underpant, tripping her legs to fall to the floor on her back and that he was alone with her at the house after Bukiri’s family went to the school.

The court reminds itself that it is dangerous to convict upon uncorroborated evidence of a complainant in a sexual offence such as in this case. This is a case where the court would look for corroborative evidence in order to convict. There was no evidence to corroborate the victim’s story on the indecent assault charge.

The court therefore finds Ove not guilty of indecently assaulting the victim and is acquitted accordingly.

Francis Mwanesalua
Puisne Judge