Regina v Iki [2007] SBHC 44; HCSI-CRC 119 of 2005 (16 March 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 119 of 2005

Regina

v.

Dick Nare Iki

(Palmer CJ)

Date of Hearing: 15th, 16th, 19th, 21st February & 6th March 2007
Date of Judgment: 16th March 2007

J. Seuika for the Crown.
A. Fa’asau (Mrs.) for the Defendant.

Palmer CJ.:

1. The prosecution alleges that the defendant, Dick Nare Iki ("Iki") had unlawful sexual intercourse with Matsuko Pelomo ("the victim"), without her consent. Prosecution alleges Iki forced the victim to accompany him to Henderson in a public bus, forced her to drop off with him at the side of the road there, forced her to accompany him to a spot under some rain trees about fifty or so meters away from the road and houses and had sex with her without her consent.

2. The main issue for determination is whether there was consent or not and if consent, whether it was obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm. The burden of proof lies with prosecution from first to last.

3. There are a number of sub-issues which require determination as a prelude to the substantive issue of consent.

3.1 Whether the victim was forced to accompany Iki in the bus to Henderson never mind the fact she did not know him or that he was a stranger to her.

(i) Prosecution’s case is that Iki was drunk and threatened to harm the victim if she did not accompany him for a bus ride to where it will turn around. Prosecution says she was prevented from getting out of the bus twice when she wanted to get out, first at Chinatown bus stop and secondly, at Kukum bus stop. As a result of the threats made she felt obliged to follow what he demanded and went all the way to Henderson with him. She became scared of him. At China town bus stop when she attempted to leave, he blocked her way and pushed her back onto her seat.

(ii) The defence on the other hand says that she willingly followed Iki to Henderson where they dropped off, walked together for some distance to an isolated spot under some rain trees where they had consensual sexual intercourse before returning together to catch a bus back where the victim dropped off at King George Sixth School bus stop.

(iii) For the following reasons I do not find that prosecution had shown beyond reasonable doubt that the victim was forced to accompany Iki all the way to Henderson.

(a) There were passengers going in and out of the bus throughout the journey from the Tourist Visitor’s Bureau bus stop opposite the museum. It wasn’t the case where she was alone and help was nowhere to be sought or obtained. Although she may have been prevented by Iki from going out of the bus at China town and Kukum, there were people in the bus that she could easily have alerted or asked for assistance including the bus conductor and driver. There was no evidence to suggest that she ever asked anyone for help. Some of the passengers that were in the bus with them included some mature women who she could have asked for assistance but she did not.

(b) The victim says she was crying all the way from the Chinatown bus stop to Henderson. The bus conductor, David Iro ("Iro") who was called by prosecution to give evidence however denies seeing her crying at all. His observation was that they were talking quietly to each and he thought they were more like friends. His evidence directly contradicts her evidence that she was crying. There is no suggestion that anyone else in the bus may have been aware that she was crying.

(c) The victim says they did not stop at the Lunga bus stop although she had signaled to the bus conductor and driver to stop. She also says that when they drove past Lungga she tried to open the window to shout out for assistance as her house was located on the side of the hill at Lungga but that Iki prevented her. These however were again contradicted by Iro who said that they actually stopped at Lungga and he went down to buy some cigarette rolls from the nearby stalls.

On the question as to whose version is more credible, this must go in favour of Iro’s version because what he told court was consistent with what he also told police in his statement taken one day after the incident on 14th November 2004. In contrast the victim never mentioned anything to police about trying to open the window as they drove past Lungga bus stop. This was put to her in cross examination but all she could say was that she had actually told police about this but not recorded. Ultimately this discrepancy in crown prosecution’s witnesses evidence must go in favour of Iki.

Iro’s observation of them at that time is also relevant. He says they were talking to each other and everything appeared to be normal. He denied seeing the girl in tears at all. He denied hearing or seeing any window being slammed shut at Lungga. His overall observation was they were talking to each other like friends.

I have had opportunity to listen to this witness and observe his demeanour in court. I have no reason to doubt his credibility or have concerns that in some way he may be trying to assist the defence case. Any discrepancies in these witnesses evidence must go in favour of Iki.

(d) The victim says that she was crying throughout but Iro denies this. She also says that Iki was talking to her in a loud, aggressive and threatening manner but there is no evidence to support this apart from her own evidence. She says there were other passengers in the bus but it seems as if no one, including Iro were ever alerted to the fact that she was being accosted by a stranger beyond her will. She did not alert anyone about that fact too at that time.

(e) At Henderson where they were dropped off, the victim says that Iki held her hand and pulled her along with him. This was not supported by Iro’s evidence who said that she followed him from behind.

(f) The victim also says that when she walked past Iro, she tapped him on the shoulder to tell him that she did not know Iki and requested help. Iro however denies this. He says they were acting normally as they left the bus and there was nothing to alert him about their exit.

These discrepancies can only weigh in favour of the defence case.

4.1 The second sub-issue is whether prosecution had shown on the evidence that she was forced to accompany her to the rain tree and forced to have sexual intercourse there.

The victim says she was pulled along unwillingly through the grass and bushes for some fifty or so metres to the bottom of some rain trees where she was raped.

(i) For the following reasons I find that prosecution had failed to prove beyond reasonable doubt that she was also taken along unwillingly for some fifty or so metres to the rain trees where the alleged rape took place.

(a) Critical to the issue of whether she was forced to accompany Iki was the direct contradictory evidence given by Iro of any element of unwillingness or refusal on the part of the victim. There was no supporting evidence from Iro that she refused to leave the bus or some similar action to demonstrate refusal or unwillingness at any point of time. His evidence in chief and during cross examination was consistent throughout. I am not satisfied his credibility has been undermined. His evidence therefore is a direct contradiction of the victim’s version. This contradiction has never been rebutted, resolved or explained.

Although Iro did say he spoke the same language as Iki he denies they were related or that he knew Iki. There is no evidence to suggest Iro may have been trying to assist Iki in some way throughout the bus ride. His contradictory evidence leaves prosecution’s case with unresolved inconsistencies and raises questions about the credibility of the victim’s evidence and whether it is safe to rely on it.

(b) It is not in issue they walked for some fifty or so meters to some rain trees. Learned Counsel for Iki points out in her closing submissions that if there was lack of consent there was nothing to stop Iki from raping the victim anywhere along the bushes and grass instead of having to walk all the way to the rain trees before committing the rape there. I accept there was no evidence of any force or violence being applied.

(c) When they got to the rain trees the evidence regarding what happened there is more consistent with things done in a consensual manner than rape, although the case for the prosecution was that the victim consented out of fear. She had told court that Iki had threatened to kill or harm her if she did not comply with his demands.

At the bottom of the rain trees Iki placed his green shirt on the ground before telling the victim to lie down on top of it. The victim says she was pushed down onto it.

Although she undressed herself when told to do so she also said that he helped her and that her clothes were placed neatly in one spot. There was no suggestion of any violence involved in getting her undressed in the sense that any of her clothes were torn, zips broken, or taken off hurriedly and clothes scattered around the area. There is no evidence of any struggle involved in the process.

(d) I also take note of the absence of any struggle or violence when sexual intercourse took place. Actual penetration took place after six to seven attempts were made and only with the help of the victim. The medical evidence adduced is consistent with this. There is no suggestion of any forced penetration and serious injury sustained as a result.

(e) The spot where sexual intercourse took place was well away from sight or any nearby houses. It was an isolated spot. There was no suggestion that the victim made any attempts to run away from Iki.

(f) Sometime during the sexual intercourse they heard voices but again there was no suggestion that the victim made any attempts to scream or shout although she did say that Iki had told her not to shout or that he would "kill" her.

(g) After the sexual intercourse had taken place, she wore her clothes and they returned to the main road to catch a bus back into town. They were walking together when they came out. There is no suggestion she attempted to leave or refused to accompany Iki back to the road. When a vehicle went past some friends of her girl friends waved to her and she acknowledged them by waving back at them. There was nothing to suggest that she made any attempts to seek help from them or to alert them that she needed help.

Also when they walked past the Airport Motel where a few people were, again there was nothing to suggest that she did anything to seek help from them. They caught the bus opposite the Motel and went in together and sat together. There was nothing to suggest as well that she may have sought any help from those in the bus whether it was the bus conductor or the driver. By sitting with Iki in the bus there was nothing to suggest that perhaps something was amiss.

(h) She did not drop off at Lungga where her home was but instead dropped off at King George Sixth School bus stop. She gave explanation for this as an attempt to hide from Iki where her home was as she did not want him to come after her again. It seemed that Iki may have suggested to her that he wanted to contact her again later but that she did not want to have anything more to do with him. In the light of the evidence that had been adduced this factor does not assist prosecution case.

4.2 The third sub-issue is that of the fresh complaint consistent with a rape having taken place. On this matter there is evidence which suggests to some extent that yes she did report the matter to the next immediate person she trusted of what had happened to her. The evidence of her father who came to see here shortly after he was made aware of what she had told her friend’s mother and that of the reporting police officer were consistent in terms of her appearance and demeanour at that time; that she was crying and upset and appeared to be in a distressed condition. As a result of her complaint and description of Iki he was arrested shortly after.

5. There are two basic elements in rape to be proven by prosecution beyond reasonable doubt in this case; that there was no consent or consent which had been obtained by force, or 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.

Prosecution’s case had been pitched on the basis that there was no consent, that Iki was a stranger and was drunk at the time the offence was committed and that even if there had been consent that it was obtained by threats and intimidation.

Defence case on the other hand was that whilst they were strangers and that Iki was drunk, at some point in time the victim consented to accompany Iki in the bus and to drop off at Henderson with him. That after the sexual intercourse, the victim regretted having accompanied Iki and more so when they were recognised by some girl friends of her girl friends in a car shortly after the incident. That as a result she made it appear that she had been raped when it was consensual. Defence says that Iki was surprised when he was arrested by police as he thought it had been consensual.

6. It is for prosecution to prove beyond reasonable doubt that there was no consent or that consent had been obtained by force, threats or intimidation. For the reasons given above I am not satisfied prosecution had discharged the onus placed upon them in this case. I find Iki not guilty of the charge of rape and order that he be acquitted.

Orders of the Court:

1. Find Iki not guilty of the charge of rape; and
2. Order that he be acquitted.
   

The Court