Regina v Kaua [2007] SBHC 84; HCSI CRC 378 of 2006 (1 October 2007)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 378 of 2006

REGINA

v

ROBERT KAUA

(Faukona, J)

Date of Hearing: 18, 19, 20 and 21 September 2007
Date of Ruling:1st October 2007

For the Crown: Mr Ricky Iomea
For the Defence: Miss Manning

RULING ON NO CASE TO ANSWER SUBMISSION

[1]. FAUKONA J: The accused Mr. Robert Kaua is charged for the offence of Rape. The offence of Rape is defined by Section 136([1]) and the punishment for Rape is spelled out by Section 137([2])

[2]. After the closure of the crown case the defence has submitted a no case to answer submissions, on the basis that the evidence is such that, taken at its highest a Court of fact could not properly convict.

[3]. The Facts

The Crown alleges that the accused who was the driver of a taxi cab registration number AB561, picked the complainant from the Rove bus stop, at about 4 to 4:30am on the morning of 1st August, 2006. The taxi cab was supposed to drop off the complainant at her home at Tasahe. On their way to Tasahe, the complainant fell into deep sleep. The accused did not stop at the complainant’s house, but drove on. At a spot he stopped and raped the complainant whilst sleeping at the back seat of the car.

[4]. The Law

Section 136([3])

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 fact, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape.

Section 137([4])

Any person who commits the offence of rape shall be liable to imprisonment for life.

[5]. The powers of this Court in deciding whether there is a case to answer or not, is enshrine in Section 269 (i)([5]).

Section 269 (1)

When the evidence of the witnesses for the prosecution has been conducted, and the statement or evidence (if any) of the accused person before the committing Court has been given in evidence, the court, if it considers that there is no evidence that the accused or anyone of the several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record of finding of not guilty.

[6]. The starting point on the consideration of a no case to answer submission is Section 269 (i) above. The test to be applied was amplified by the Court of Appeal of Solomon Islands in Regina –v- Tome ([6]) which their Lordships stated at page 3.

“The test called for by Section 269 (i) is whether or not there is “no evidence” that the accused committed the offence. That must mean that if there is more evidence that the accused committed the offence the case must proceed to final determination by the tribunal of fact.”

[7]. At paragraph 10([7]) their Lordship add;

“As is made clear by cases such as Doney inconsistencies in evidence (whether within the testimony of a witness or as between witnesses) are not relevant of the no case stage. The Court must take the prosecution evidence at its highest and that means accepting the evidence most favourable to the prosecution when determining whether an accused has a case to answer. The test is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty.”

[8]. In Regina –v- Lutu (1985 – 86)([8]) Ward CJ stated:

“Clearly this is not the time to evaluate such matters as discrepancies between witnesses, or which parts of the evidence are credible and accurate and which are not. These are all matters for the decision of the evidence as a whole and where there is evidence that could result in a conviction by the Court, then the accused must be put to his defence.

Where, however, there is some evidence but it is so little or unconvincing that it is insufficient even if uncontradicted by the defence to make a conviction possible, the Court should not require the accused to make a defence”.

[9]. On the issue of inconsistency of evidence and evaluation of discrepancies of evidence, would that mean the Court should not evaluate the evidence at all. The answer is no. The author of Criminal Law in Solomon Islands([9]) has at Page 374 paragraph 4 in which he refer to Criminal Law and Practice of PNG at page 620 any weighing of the evidence by the Judge or Magistrate, require by no case to answer submission at the close of the state case should be kept to the absolute minimum.

[10]. In a recent case by the Court of Appeal of Solomon Islands Regina –v-Somae([10]), their Lordships in considering the issue of evidence to be considered for the purpose of No Case Submission state at Page 3.

“It is important to note that the evidence that is to be considered for the purposes of a no case submission must be capable of proof beyond reasonable doubt of the accussed’s guilt. It is not enough if it is merely capable of proving possibility of guilt. It must be capable, if accepted of proving guilt beyond reasonable doubt”. As the High Court of Austalia said in Doney (171 CCR at 215). “To put the matter in more useful terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty”. It follows that it must be such as to permit proof of guilt without inappropriate speculation. Whether it is right to take the evidence at its highest or most favourable to Crown is of course, ultimately a matter for the tribunal of fact. But, in order to establish a case to answer, there must be some evidence capable of establishing, whether directly or inferentially, every element of the offence charged beyond reasonable doubt. To take on example that might have applied in the present case if the respondent had made no admissions, the Crown would have established that it was possible that he that shot the deceased, but there was no evidence capable of establishing beyond reasonable doubt that he had done so. Accordingly, there would have been, on this hypothesis, no case to answer”.

[11]. In Regina-v-Tara([11]) Palmer CJ referring to R-v-Tome([12]) at page 4 state that the requirements for a case to answer in the High Court are essentially the same as in the Magistrates Court. The test to be applied is that there is either no evidence or insufficient evidence to prove the elements of the charge.

[12]. His Lordship cited with approval comments made by Muria CJ in R-v-Maenadi Watson and others([13]), which he said

“As such in Solomon Islands where a judge is both a judge of fact and law he is entitled to go beyond the mere consideration of evidence on the essential element of the offence [He] is entitled to consider the sufficiency of the evidence at the close of prosecution case in order to determine whether there is a case to answer”.

[13]. In Samae Case([14]) their Lordships stated at page 3.

“It is obvious there was a basis for a submission, at least, that although there may have been evidence upon which the accused might lawfully convicted, the tribunal of fact (here the trial judge) might well consider that it was so lacking in weight and reliability that a conviction would be unsafe”.

[14]. From the authorities cited it is considered relevant to outline the issue of evidence to be considered for the purpose of no case submissions.

[15]. (1). There must be some evidence that the accused committed the offence and once accepted, must be capable of proving guilt beyond reasonable doubt; and not possibility of guilt. Those evidence must be capable of establishing whether directly or inferentially every element of the offence.

(2). Beyond availability of some evidence, there must be a case sufficiently made out at the close of prosecution case. It requires that the Court should be notified at the close of prosecution’s evidence that there is a case sufficiently made out against the accused.

(3). At no case submission stage, consideration in relation to inconsistencies, discrepancies, credible and accuracy of evidences should be kept to a minimal.

(4). Whether the Court must take the prosecution evidence at its highest, or most favourable to the prosecution, is ultimately a matter for the tribunal of fact.

(5). The judge has a discretionary power sitting as a trier of fact, even if he finds there is a case to answer, where the evidence is so lacking in weight and reliability that a conviction could be unsafe.

The Evidence

[16]. Identity of the Accused

On the issue of identity the prosecution has adduced evidence from four witnesses. They are PW1, PW4, PW5 and PW6. PW1 the complainant said that after she pushed the accused away from ontop of her, raping her; said he had short hair and was not that big. She also saw and noted the taxi number plate as AB651, as the car drove away. She also stated by remembering the taxi driver was wearing a jersey or t-shirt with stripes, yellow but not sure. She also stated the colour of the car is grey down and the rest is dark blue.

[17]. PW4 who was working with PW5 at the Kings Taxi Base on the night in question. Her job is to take call from clients, then PW5 would radio out for taxi drivers. She confirmed that the only way that a driver is identified is by that the driver tells the base his number. PW4 said she took a call from a girl waiting to be collected from Rove Bus Stop at 3am, but could not remember how many calls she received from clients that night.

[18]. PW5 was the radio operator at the Kings Tax Service Base on the night of 31/07/06 until morning. His task is to put calls out and then as driver will respond with call number. He said when he pick the call out at 3am for a pick up from Rove Bus Stop a taxi driver respond, and identify himself as car 65 and said he would pick up the client. He agreed that the only way he had knowledge of the driver was by what the driver told him. He confirm that Kings Taxi Service call numbers are the same as license plates and that all the drivers know that.

[19]. On the morning of 1st August 2006, at 6am, the witness said a girl call back to Kings Taxi Base and he talked to her, and he gave the girl the license number plate he thought had taken from the call at 3am as AB651.

[20]. PW6 confirm to the Court that he was the owner of taxi cap registration number AB651, and the colour is dark blue. On the evening of 31/7/06, about 7pm he gave the car to Robert Kaua, the accussed to work for him for the night, as he was so tired working during the day. His call sign is 65.

He also stated that in the morning at 5am 1/08/06 he got the car back from the accused with night takings. He identified Robert’s clothes that night as blue jean or jersey coloured yellow and green. He is slim and tall.

[21]. How taxi services company operated in this country is more or less what PW4 and 5 said. It is true that all the taxis affiliated to a particular taxi service company; and the drivers could know each other as their call signs. These call signs cannot be detected by other taxi services company. Because of communication efficiency with taxis and the base, the operation generally is like a big family corporation where monitoring and cordination is well controlled. Thus it would not always occur, if so, rarely, that a different taxi with a different call number taking away the call of another taxi. It would be seen as not cooperation, and of course would cause ill feelings and frustration among drivers of taxis. That sort of behaviour will not be acceptable by users of tax service companies.

[22]. In relation to the evidence before this Court, there seemed to be an unbroken link of evidence from PW6 to PW5 and then PW1. On the whole the evidence directly points to the accused. I find there is evidence which directly identify the accused as being the driver of a cab registration No. AB651 on 1/9/06 and picked the complainant at Rove bus stop, at 3am and transport her to Tasahe area.

The Actual Rape

The Issue of Consent

[23]. The evidence before this Court related to the issue of consent basically from the complainant. On her oral testimony she said when the accused picked her from Rove bus stop and then travelled to Tasahe. As they were climbing the second Tasahe hill the witness fell into deep sleep. Driving past her house the taxi driver stopped and had sexual intercourse with her while sleeping at the back seat of the taxi.

[24]. When she woke up the accused was ontop of her having sex with her. She immediately pushed him away

[25]. And he got off and went to the back of the car and dressed. On his return complainant told him he was very unkind. Yet at that point the accused denied having sex with the complainant.

[26]. After the taxi left, the complainant walked home. On her way she met PW3 a security officer in one of the residential home and told him that a taxi driver had raped her. She also cried then.

[27]. Then PW3 walked the complainant to her home. On arrival, as soon as her mother PW2 opened the door the complainant told her that a taxi driver attempted to rape her.

[28]. PW2 and 3 in their evidence in Court confirm what the complainant had told them of what the accused did. PW3, confirmed that the complainant cried when she reported the matter to him. PW2 the mother of the complainant confirm that the complainant behaved abnormally. She walked in and out of the house. She was restless.

[29]. From those evidence, it is a great concern on behalf of the complainant when she reported at first instance to the first person met, of what the accused did. That clearly points out that there was no consent obtained for accused to have sexual intercourse with her. Similarly the same can be said when the complainant arrived home she immediately told her mother, PW2 of what happened to her. That clearly showed that she did not consent to what the accused had done to her. Thirdly she bothered to report the matter to police as soon as possible. In normal human behaviour especially in Melanesian society, that girls not normally report that they had sex with someone by consent. That is regarded as tabu. Should the brothers heard there would be anger and demand for compensation.

[30]. I find that there is evidence that the complainant had not consented to any sexual intercourse.

Actual sexual intercourse (penetration)

[31]. The complainant in evidence stated that on 1st August 2006, early hours in the morning, roughly 4 – 4:30am at Tasahe, whilst sleeping on the seat at the back of a taxi AB651, the accused had sexual intercourse with her. When she woke up the accused was ontop of her. She said she could feel the accused moving his buttocks up and down and moving, like he was enjoying sex. She could feel accused penis inside of her vagina. She could remember the accused moved his buttocks three times. Thereafter she pushed the accused away with her two hands.

[32]. This is one of the crucial elements in a rape charge. To prove this element the prosecution adduced one witness, and that is the complainant herself. All other evidence adduced by the prosecution is basically toward identifying the accused. There is no other independent evidence in support of the actual sexual intercourse. Counsels in this particular point do not assist much. There is no submissions in regard to actual sexual intercourse and penetration.

[33]. It is common understanding that the act of sexual intercourse is a secret activity which do not often expose to public view. However in a rape charge, where consent is not obtained or obtained by threat and force. Sexual intercourse is often carelessly done in public places where certain people might have the privileges of seeing what occurred or hear sounds.

[34]. In this case prosecution alleges that the act of rape took place somewhere in a public place at Tasahe area. Nevertheless, there is no independent evidence to support the evidence of the complainant by way of corroboration in any material form. Independent evidence is crucial in sexual offences. In this country the danger is that a girl or woman may give false evidence for the reason that she had consented but too ashamed to admit it. Secondly the sympathy excited by the girl or woman who has been the apparent victim of rape may make her evidence, whatever its accuracy, more acceptable to the Judge. Nevertheless I may still find there is evidence if complainant is telling the truth.

[35]. However, the only evidence available that might corroborate the evidence of the complainant is the medical report. Upon reading the medical report, there is no suggestion by the doctor that penetration did occur. That absolutely not supporting the complainant evidence at this point and find the evidence adduced by the prosecution is insufficient and which a tribunal of fact could not possibly convict the accused. I therefore find there is no case to answer and dismiss the charge against the accused and acquit him accordingly. Accused be discharged from custody forthwith.

THE COURT

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^[1] Penal Code
^[2] Penal Code
^[3] Supra
^[4] Supra
^[5] Criminal Procedure Code
^[6] Unreported Criminal Appeal Case No. 4 of 2004, Court of Appeal
^[7] Supra
^[8] (1985-1986) SGLR 49, Page 251 Paragraphs 2 and 3
^[9] Produce by Prosecution Branch, Mr Erol
^[10] (2005) (Unreported Court of Criminal Appeal Case No. 103 of 2004)
^[11] (2005) SBHC 91; 18^th August 2005
^[12] (2005 SBH C91)
^[13] (Unreported Criminal Case No. 16 of 1997
^[14] Supra