Regina v Timi [2007] SBHC 5; HCSI-CRC 118 of 2005 (14 March 2007)

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1	The accused James Timi is charged with rape under Section 137 of the Penal Code.
2	It is said that on August 2003 he had sexual intercourse with the complainant Eunice Fota (Ms Fota) without her consent, she being 18 years old at the time.
3	In an agreed statement of facts both the Crown and the defence accept that on 8 August 2003, on an island near Lever Point on Banika Island, in the Central Islands Province (Solomon Islands), Timi had sexual intercourse with Ms Fota "by penetrating her vagina with his penis".
4.	The sole issue in this case is whether or not that sexual intercourse was with the consent of Ms Fota. That is, whether the Crown has proved beyond reasonable doubt that Ms Fota did not consent to that occurring.
	Facts and Issue
5.	Ms Fota gave evidence that at the time she was living with her mother at Mbeisen Village in the West Russell Islands when Timi arrived by boat at the beach adjoining their house. It is common ground that Timi was then a Police Officer based at Yandina Police Station. The distance between Mbeisen Village and Yandina is said to take something over one hour to cover in a small boat with an outboard motor.
6.	Ms Fota’s evidence was that Timi arrived alone and asked her to accompany him to Yandina Police Station. Ms Fota initially told the Court she didn’t know why she was asked to do this, but in cross examination she said she was told by him that it was for the purpose of making a statement (about what she didn’t know).
7.	Ms Fota said her mother made it clear to Timi that she wanted to go with her daughter, but Timi refused to allow this.
8.	Ms Fota’s evidence was that she then left Mbeisen Village with Timi in the outboard motor boat and headed towards Yandina. She said that at sea Timi lowered his trousers, took his erect penis in his hand and pointed it at her, and said "this one will go inside of you". She said that he also asked her, referring to his penis, "is it small or big?" She said that while this was happening the boat was still travelling in the direction of Yandina, with Timi’s other hand steering the outboard engine.
9.	Ms Fota says that on an island near Lever Point Timi beached the boat, ordered her out, produced a bush knife of around 30 to 35 centimetres in length, and ordered her into a bush area. There, according to her evidence, she was grabbed by him around her chest area while he was still holding the knife and forced to remove her trousers.
10.	She said that she then ran towards the boat in an endeavour to escape, tripped over a stick and fell on the ground on her front, whereupon Timi turned her over, lay on top of her, forced her legs apart, and had sexual intercourse with her, including ejaculating into her vagina.
11.	She says that following that episode they proceeded to Yandina, she did not go to the Police Station and nor was she asked to provide any statement, and she spent the night with her cousin sister Noela Minatavea at the Yandina Clinic.
12.	She says the next day she was taken back to Mbeisen Village by Timi and his wife in the same boat.
13.	On Ms Fota’s account of what occurred, clearly she did not consent to sexual intercourse.
14.	Timi’s account is that he called on Ms Fota that day because she was a suspect in a breaking and entering case, and subsequent theft, relating to a house in Mbeisen Village.
15.	He said that he wanted to take Ms Fota to Yandina for further questioning about the incident, he saying that she had first been interviewed about it at her village about one week before by Inspector Melu, also of Yandina Police Station.
16.	He denied that Ms Fota’s mother requested that she accompany her daughter.
17	He said that as he and Ms Fota were leaving the village in the boat the mother shouted, "you take Eunice, go to island, fuck her and bring her back tomorrow".
18.	He says that they stopped briefly at Marulaon Village on the way to Yandina on official police business, and that after that and while at sea Ms Fota, when asked by Timi why she was laughing, said that she was recalling the mother’s words when they left.
19.	Timi’s evidence was that the two of them then discussed a suitable landing spot for the purposes of having sex, and that this landing on an island near Lever Point was part of that arrangement.
20.	Timi said consensual intercourse occurred on the island.
21.	On their arrival at Yandina that evening Timi said that he interviewed Ms Fota at the Police Station over the breaking and entering incident and that she denied any involvement.
22.	He said that the following day, by pre-arrangement, he and his wife took Ms Fota back to Mbeisen Village in the same boat.
23.	He says that as they arrived at Ms Fota’s mother’s house, the mother called out to the 3 of them "James has come with his two wives".
24.	I deal first with the question of whether or not I accept Timi’s evidence. If I do, then the Crown case necessarily fails.
25.	I make the following observations and findings:
	(a)(i)	Timi’s position is that the whole reason for his involvement with Ms Fota was to obtain a statement from her as to her alleged involvement in a breaking and entering and theft incident. That is, she was a suspect in that case, and he needed further information from her.
	(ii)	Timi said that he did not have the appropriate forms with him to enable him to obtain this statement from her at Mbeisen Village, and hence his request that she accompany him to Yandina.
	(iii)	Timi said that on their arrival at Yandina towards evening on that day, he then interviewed her at the Police Station, putting to her a series of pre-prepared questions, she in turn denying any involvement.
	(iv)	Timi said that a Sergeant Kaipoia, also a police officer, was present at the Police Station when they arrived, and that he (Timi) had expected that the Sergeant would sit in on the interview. He agreed that this would be normal police practice. He said that instead Sergeant Kaipoia sat outside while he interviewed Ms Fota inside.
	(v)	He said that in view of Ms Fota’s denials, he did not record the interview in writing.
	(vi)	As I mentioned earlier, he said that Ms Fota had been questioned by Inspector Melu about the incident about a week earlier at Mbeisen Village, and hence this was the second time she had been spoken to by Police about it.
	(vii)	Despite all this, there was not a shred of evidence called or introduced to corroborate this elaborate story.
	(viii)	No written records of the original complaint about the incident were produced; no police file of any description as to the investigation was made available, no record of the pre-prepared questions said to have been put to Ms Fota was produced; no record of how the original complaint was finally disposed of was produced; and no explanation for this lack of documentary material of any description was proferred to the Court.
	(ix)	In addition, neither Inspector Melu nor Sergeant Kaipoia were called to give evidence; Timi confirmed to the Court when questioned that Inspector Melu was still a Police Officer and he believed him to be currently living in Honiara, and that Sergeant Kaipoia had been made redundant from the Police and that he personally did not know where he lived.
	(x)	In the absence of any corroboration of the kind to which I have referred, I am deeply suspicious about the genuineness of Timi’s story.
	(xi)	Further, I see no good reason at all why Timi could not have interviewed Ms Fota at Mbeisen Village, if in fact he was carrying out a police investigation. To suggest that it was necessary to take her all the way to Yandina simply to ask her some pre-prepared questions is fanciful and entirely unconvincing
	(xii)	I then consider his evidence about Ms Fota’s mother encouraging him to, as she was said to have put it, fuck her daughter, and on their return giving the supposed deed her blessing by referring to Timi’s wife and Ms Fota as "his two wives" Ms Fota’s mother denied making any such statements.
	(xiii)	It is common ground that Timi was at the time a married man with 4 children; there was evidence, which I accept, that in the Melanesian culture an unmarried woman having a sexual relationship with a married man is frowned upon.
	(xiv)	There was also evidence, which I accept, that Ms Fota’s mother used to get angry with Ms Fota because she had boyfriends.
	(xv)	Furthermore, it would be surprising indeed if Ms Fota’s mother had been prepared to make reference to Timi’s "two wives" in the presence of Timi’s actual wife.
	(xvi)	For these reasons, I do not accept that Ms Fota’s mother lent any encouragement whatsoever to Timi to have sex with her daughter, and I find that she did not make either statement to Timi.
	(xvii)	For the reasons I have given, I also reject Timi’s evidence about he being at Mbeisen Village on 8 August 2003 as part of a police investigation. If there was a police investigation concerning Ms Fota at all, which I seriously doubt, then I expressly find that that was not the reason Timi went to Mbeisen Village that day.
	(xviii)	I find that the reason for that visit and the request that Ms Fota accompany him in the boat was to provide him with an opportunity to have sex with Ms Fota.
	(xix)	Nor do I accept that once back at Yandina Timi took Ms Fota to the police station and interviewed her.
26.	This leaves, then, the issue of whether the Crown has proved that the sexual intercourse, agreed to have occurred, took place without Ms Fota’s consent.
27.	Ms Fota’s evidence was straightforward and although a little contradictory in parts, not significantly so in my view.
28.	I now consider what if any corroboration there was of her version of events.
29.	First, she said that once at Yandina on the evening of 8 August 2003, she stayed with her cousin sister Noela Minatavea but did not tell her of the incident because she (Noela) was also related to Timi. I accept that in these circumstances it is quite understandable why she would not relay her story.
30.	She then said that the next day, once back at Mbeisen Village, she did not tell her mother because she considered that she would get angry with her. Once again, I consider this to be quite an understandable position for Ms Fota to take.
31.	She then said that later that day she told her nieces the whole story, their names being Dora Duri and Edes Malabolo. As Ms Fota put it, "I told them everything that James Timi and me did on the way". She also said "I told them about when we went ashore on the island. I told them this after having had a sleep".
32.	The niece Dorah Duri gave evidence for the Crown (the other niece Edes Malobolo did not). Ms Duri’s evidence matched that of Ms Fota, she telling the Court that Ms Fota had told them everything, including Timi having taken out a knife on the island, telling her to take off her clothes, and then having sex with her.
33.	When Ms Duri was cross-examined, it transpired that on 19 May 2004 she had spoken to the Police about the matter and that discussion had been recorded in a written statement signed by her.
34.	Ms Lidimani put extracts of that statement to Ms Duri. She put the following written extracts to Ms Duri of what she had told the Police, namely: "She further reveals by saying the Police Officer asked her, to suit sexual intercourse, with Eunice" and "then she said, he shows his private part, "Penis" and "It was said to them to went ashore" and "went ashore to one of the island opposite the Lever Point Banika Island" and "Eunice was not said any further about had sexual intercourse with the Police Officer".
35.	Ms Duri agreed that those extracts were what she had told the Police. She also agreed that she had not lied to the Police.
36.	She further agreed that her statement to the Police said nothing about Timi producing a knife on the island, nothing about she (Ms Fota) running away from Timi and falling over, and nothing about she (Ms Fota) being ordered to take off her clothes.
37.	So on the one hand Ms Duri told the Court that Ms Fota on 8 August 2003 told she and her sister everything about the incident.
38.	On the other hand Ms Duri, when asked by the Police in May 2004 to tell them what Ms Fota had told her, she told them that Ms Fota had said Timi asked her for sex but did not say anything further about the incident ie did not tell her whether and in what circumstances sexual intercourse may have taken place.
39.	Ms Duri offered no real explanation for this discrepancy. On the one hand she confirmed the accuracy of her statement to the Police, but on the other hand she continued to maintain that Ms Fota had told her in August 2003 all about the incident, including the forced sex.
40.	This leaves me in a situation where I am not prepared to rely on the evidence of Ms Duri.
41.	Even more significantly, Ms Duri’s evidence has the potential to and does impact on the reliability of Ms Fota’s evidence.
42.	I consider that in her statement to the police in May 2004, Ms Duri may have been entirely truthful in relaying what Ms Fota had told her. There is certainly nothing to suggest that Ms Duri may have had a reason to withhold information from the police in May 2004.
43.	If, then, what she told the police in May 2004 was an accurate account of what Ms Fota had told her, it would necessary follow that Ms Fota was incorrect in her evidence that she told Ms Duri everything, including the fact of forced sexual intercourse, when she confided in her on 9 August 2003.
44.	However, I consider that a person in Ms Fota’s position, having allegedly been raped, would know very well to this day to whom she confided in and to whom she did not.
45.	In other words, on the premise that what Ms Duri told the police in May 2004 may have been a truthful account of what Ms Fota had told her, there is then the possibility that Ms Fota’s evidence to the Court, namely that she told Ms Duri everything at the time, was untruthful.
46.	In this way the reliability of the evidence of Ms Fota is called into question.
47.	I add to this the fact that Ms Fota also told the Court that she told her uncle the following evening everything that had happened to her. However, in his evidence, Clement Savaka said that while Ms Fota told him that she had been taken to an island by Timi, she did not say what happened on the island. I accept the evidence of Clement Savaka, as there is nothing to suggest why he might misrepresent the truth or have forgotten such a significant event.
48.	I accept the evidence that it was Mr Savaka who first complained to the Police in 2004 about the matter, effectively on behalf of Ms Fota. There was no evidence of the detail of that complaint, or how Mr Savaka acquired sufficient information such that he felt able to initiate such a complaint. His actions therefore fall short of persuading me that by then Ms Fota had told him that Timi had forced her to have sex with him.
49.	The effect of my analysis of the evidence of Ms Duri and Clement Savaka, compared with the evidence of Ms Fota, is that Ms Fota’s account of forced sex is not corroborated except by evidence of Ms Duri which itself contradicts her earlier statement to the Police and therefore cannot be relied on.
50.	This in itself is not fatal to the Crown case, because when the complainant’s evidence is clear and convincing it is not essential for there to be corroborating evidence.
51.	However, in this case the evidence of Ms Duri and Clement Savaka, said by the Crown to corroborate the evidence of Ms Fota, in fact calls into question the reliability of her evidence.
52.	I find, for the reasons I have given, that I cannot safely rely on the evidence of Ms Fota, including her contention that Timi forced her to have sex that day.
53.	While the circumstances point to Timi being opportunistic in the way I have already described, this in itself does not necessarily mean that the sexual intercourse which followed was without Ms Fota’s consent.
54.	For these reasons, I find that the Crown has not proved beyond reasonable doubt that the sexual intercourse which took place on 8 August 2003 was without Ms Fota’s consent.
55.	I therefore enter a verdict of NOT GUILTY to the charge of rape against Timi, and he is accordingly acquitted of the charge.
THE COURT

High Court of Solomon Islands

Regina v Timi [2007] SBHC 5; HCSI-CRC 118 of 2005 (14 March 2007)