Regina v Olidele [2007] SBHC 45; HCSI-CRC 583 of 2005 (29 March 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 583 of 2005

Regina

v

Eddile Olidele

(Palmer CJ.)

Date of Hearing: 5th, 7th, 8th, 9th, 12th, 13th, 15th March 2007
Date of Ruling: 29th March 2007

R. Iomea for the Crown
Ms. Swift for the Defendant

Palmer CJ.: At close of prosecution’s case, a submission of no case to answer was made by Ms. Swift, counsel for Eddie Olidele ("Olidele").

She raises three grounds. The first is that prosecution is confined to proving the element of consent as the basis on which their case had been pitched at the beginning. The second is that even if consent is not in issue prosecution had not demonstrated on the evidence before this court that the consent had been obtained by force or means of threats or intimidation of any kind, or fear of bodily harm. The third ground is that even if there was evidence of intimidation it is so lacking in weight to be reliable to sustain a conviction.

1. Is there sufficient evidence of lack of consent? For the following reasons this question must be answered no.

(i) In her evidence, Philomena Siola ("the victim") says that although she did not make any previous arrangements to meet Olidele that night, because he was drunk and persistent, she eventually consented to accompany him to talk to him and find out from him what it was that he wanted to talk to her about.

(ii) She could have refused to accompany him if she had wanted to. Although, he was drunk and behaving inappropriately that night, she could have made a stand and refused to accompany him. She was not obliged to accompany a drunken, loud and aggressive person who had disturbed her that night.

(iii) Olidele obviously had broken the standing rules that night and ought to have been reported by Claudia Harry ("Claudia") and Davis Kusapa ("Davis"). They ought to have taken a stand against him that night despite and inspite of his most inappropriate behaviour. Although they indicated they felt intimidated by Olidele, they ought to have realised that they were in the right to stop him from seeing the victim and to protect her from him. Claudia did say that she tried remonstrating with Olidele to come back in the morning but because of his insistence she gave in and went and woke up the victim in the hope that after talking to her he will go away. She should not have given in. She did say that she did not think what he said about jumping off the rails for instance were real threats and that he was going to do that. She felt he was doing it to get the attention of the victim.

The same was said by Davis. He had been woken up by Olidele and despite attempts to remonstrate with him, Olidele persisted. There was however no threats and he ought to have simply refused to comply with what Olidele requested. I accept there may have been some element of fear on the part of Davis on the basis he was a new recruit compared to Olidele but that makes little difference when it comes to issues regarding breaching of rules and standing orders which applied to them.

He could have simply refused Olidele’s requests or woken up his other room mates for assistance to get rid of Olidele.

(iv) Claudia and Davis could have sought or obtained help from others to remonstrate with Olidele but they didn’t. Whilst it may have been a mis-judgment on their part, thinking that Olidele will simply talk with the victim and leave, that does not detract from the fact that what happened thereafter cannot be described as amounting to lack of consent on the part of the victim.

(v) After having been woken up, the victim could have taken the stand to refuse to talk to and accompany Olidele despite and in spite of his insistence. She could have refused to come out when she was told who the person was and if she did not know him and did not expect him. The three of them could have taken a stand against him and raised alarm about the fact that he was trespassing into the dormitory area of the women police recruits. The fact he was their senior makes little difference to the fact he was trespassing, acting inappropriately and deserved little respect from them. They were in the right and he was in the wrong, and right always wins over wrong.

(vi) I accept there is evidence she became frightened and felt intimidated by his behaviour but it wasn’t the case where there was no alternative course of action that was open to her to take. Although she told the court she felt there was no way out, the evidence does not support that. It wasn’t the case where she was alone by herself and immediate help was not available. She already had the assistance of two other officers with her. She could have refused outright in the same way Olidele was "stamping his feet" so to speak on the floor and insisting that she accompany him so that he could tell her the "urgent message". If he wanted to jump off the rails that was his problem and not hers. The fact he may have threatened to burn the fire trucks or cause damage to his barracks or whatever again were his problems and not hers. Claudia told the court she did not think he was serious about what he was saying. She could have sought the assistance of Claudia and Davis or insisted that others be woken up to assist her or to have Olidele removed from their barracks.

There was clear evidence that there were others around at that time, the victim’s room mates as well as others in Davis’s dormitory who could have been woken up as well.

This was at the police barracks and headquarters and there were mature and senior police officers around who could easily be woken up if alerted.

(vii) Even if she felt cornered when she was talking to Olidele initially, she had opportunity to refuse to come out when she went to her room to get changed. She could simply lock her room up and refuse to come out. Obviously if Olidele decided to jump off the rails that was his problem in the same way if he had decided to cause a disturbance, for he would simply be accosted by others in the barracks and charged for disciplinary offences apart from the fact that he may be forcibly removed.

(viii) There is evidence that she consented to accompany him downstairs to talk with him and for that reason Claudia and Davis did not do anything other than to let her accompany him. The fact he insisted in talking to her alone makes little difference to the fact that they could have decided to remain within eyesight even if they were out of earshot. In fact they had allowed her to accompany him to the bottom of a mango tree as they were sort of fed up with his behaviour and had hoped that he would go away. And it seemed that one thing led to another.

(ix) From the mango tree they went on to his barracks. They walked quite a distance including past the army barracks to get to the old PFF Barracks where Olidele stayed. There were army personnel housed in the barracks who could be woken up if alerted and would have been available to help.

(x) Once they got to his barracks he locked the door and asked her to have sex with him. There is little or no evidence to suggest that at any time the victim says she did not like him or expressly says that she refused him. Although she did say she was frightened of him there is little evidence to suggest that she refused to go with him and that she had been forcibly taken. I do not find evidence suggesting she had been forcibly removed and taken to accompany him.

(xi) She says she had been threatened to be harmed but the evidence does not bear this out. Both Claudia and Davis did not hear Olidele threaten the victim in anyway, although they did say he was persistent and making threats to cause damage to property and to harm himself. They were not of the view however that he meant what he was saying and that he would carry them out. I do not find these sufficient to indicate that her will had been overborne to the point there was practically little that can be done.

2. Is there sufficient evidence of force or means of threats or intimidation of any kind, or fear of bodily harm? For the same reasons given in this judgment, this question must also be answered no. There was little evidence of any physical harm threatened on the victim either when she was with Claudia and Davis or even when she was with Olidele alone.

In his evidence Davis told the court he felt frightened simply because Olidele was drunk, talking in an aggressive manner and talking about destroying his barracks, although there was no direct threat made against him. The same can also be said of Claudia. There was no direct threat of physical harm made against her. They did not hear any direct threats of physical harm also made against the victim although they did say he was insistent in talking to the victim alone and for her to accompany him to where he wanted her to go. They did say she appeared unwilling to go but went in any event as he was persistent.

Although the victim did say that there were threats made against her at his barracks, the subsequent evidence did not bear this out. She told the court that sexual intercourse occurred at his barracks three times that night. She left his room at day break to attend breakfast at their police mess and then return to her room to perform her duty roster. She had been listed to do the cleaning in their room. She shared that room with three other new police recruits.

According to the statement of Rhoda Maina ("Rhoda") dated 3rd August 2005, which had been admitted as evidence by consent, she stated that when the victim returned to her room to change, she put the lights on and changed before going out. She stated that she and another officer were actually awake at that time. Again this piece of evidence although not touched on during submissions does not assist prosecution case regarding options that were open to her. If they were awake and she did not want to accompany Olidele, she could also have asked for their assistance and asked them to lock the door and refused to go out again.

Also according to the statement of Rhoda, they were awake by 5.30 am and watched a movie on her small DVD screen in their bedroom. The victim was still absent from the room at that time. At about 6.00 am she returned and started cleaning up their room. Although she noticed that she appeared to be in a panic, no fresh report was made to her or any of her room mates. No fresh report was made to Claudia as well that morning until she was interviewed by Sgt. Agnes Ape. Allegations of rape were drawn up after she had been interviewed.

Rhoda’s statement of events immediately after the alleged report do not show or support the suggestion that any force or threats had been used against the victim.

I also find there is insufficient evidence of intimidation present in the prosecution case that would warrant Olidele to be put to his defence. But even if there was some element of intimidation in what he was threatening to do, that is to jump off the rails, or to threaten to burn the fire trucks or damage his barracks, I accept submission of Ms. Swift that these cannot be viewed as sufficient in the circumstances of this case to negate the element of consent.

She knew he was drunk at that time. She knew he liked her or perhaps to be more accurate infatuated with her it seems. Olidele had sent messages to her through others that he liked her. There was evidence that he had sent messages to make contact with the victim but over the week-end. Although in her evidence she indicated she was not interested in him, it seems as if Olidele was under the impression whether correctly or not that she may have been interested in him as well.

It wasn’t the case where she was caught out somewhere alone with Olidele and there was no alternative course of action available.

In an Australian case, Holman v. The Queen[1] [1970] WAR 2 (CCA) Jackson CJ, said regarding the issue of consent:

"A woman’s consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape."

In this case, I accept the victim made it quite clear she was not interested and unwilling to accompany Olidele as well as have sex with him that night but the evidence fell short of demonstrating that when she permitted him to have sex with her it was obtained by force, threats or fear and intimidation.

In Black v. Corkery (1988) 33 A Crim R 134 (NSW, Young J) said at page 142:

"The mere fact that pressure is put on the person consenting is not of itself sufficient to invalidate the consent or to make it other than a voluntary choice. As has been said in some of the rape cases, a reluctant consent or grudging consent is none the less a consent: .... However, pressure may get to such a degree that the act will lose its voluntariness. Just where that point is, is a question of fact ...."

In the facts of this case, it is not denied Olidele was drunk, aggressive, demanding and behaving inappropriately and that pressure was applied on the victim. I am not satisfied however that the evidence adduced is sufficient to show that the pressure applied crossed the threshold where consent was no longer voluntary. I am not satisfied on the evidence adduced by prosecution that she submitted to Olidele out of fear of threats or intimidation. Up to the point of intercourse, there is no evidence to support the victim’s evidence that any force or threats were applied on her. As they approached the old PFF barracks there is evidence which showed that Olidele was walking in front whilst she followed him from behind.

In this submission of no case to answer, it is crucial that there is sufficient evidence before me such that is credible and reliable and which if it were the only evidence available (assuming that the defendant elects not to call any witnesses or to give evidence) would be capable of sustaining a conviction then he must be put to his defence. In this instance, for the reasons given above, I am not satisfied prosecution has discharged that onus. It would not be right to put the defendant to answer the charge of rape brought against him and he must be acquitted.

Order of the Court:

1. Find no case to answer.
2. Acquit the defendant of the charge of rape.
   

The Court

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^[1] See also the case of R. v. Cook [1986] NZCA 54; [1986] 2 NZLR 93 at 97 (CA), which approved this statement.