Regina v Vuda [2008] SBHC 117; HCSI-CRC 163 of 2006 (3 July 2008)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)
Criminal Case No. 163 of 2006

REGINA

V

NATHANIEL VUDA

Date of Hearing: 25, 26, 30 June and 1 July 2008
Date of Judgment: 3 July 2008

Ms: Kieining for the Prosecution
Ms: Munamua and Ms Anderson for the Accused

JUDGMENT

Mwanesalua, J:

1. The accused is Mr. Nathaniel Vuda and the complainant is Ms. Elizabeth Geli. They were both residents of Leitongo Village, on Sandfly Island, in the Central Islands Province. A netball and soccer teams from this village went to Ravu Village to participate in a sports competition to raise funds in aid of Ravu Primary School. The concluding item of that fund raising event was a dance held on the school soccer field on the night of 27 November 2004. The accused and the victim being members of the Leitongo soccer and netball teams respectively attended the dance with other members of their teams that night. During the course of the dance, the accused led the victim out of the dance, telling her that a boy called Kairi wanted to meet her. They walked to the bush from the dancing venue. Upon their arrival there, he told her that he did not take her out to meet Kairi but himself. She resisted him but he pushed her to ground and had sexual intercourse with her without her consent from which she sustained injuries to her genitalia. She later lodged a complaint to the police that the accused raped her. He was charged with the offence of rape under S. 136 of the Penal Code (cap. 26) "the Code"), to which he pleaded not guilty before this court.
   
2. The case for the prosecutions is that the accused raped the victim. That he lied to the victim to go with him to meet Kairi in order to have intercourse with her without her consent. The case for the defence is that the accused had sexual intercourse with the victim that night with the consent of the victim. That she merely framed the accused for rape because of the shame she had brought upon herself by being discovered for going out with the accused, a married man.
   
3. The sole issue for the court to determine here is whether the accused had sexual intercourse with the victim without her consent. There is no dispute regarding penetration as the accused readily admitted in his caution statement that he did have intercourse with the victim on the night of 27 November 2004.
   

Facts not in dispute

4. There are numerous facts which are not in dispute between the prosecution and the defence. They are: the accused and complainant were residents of Leitongo Village in 2004; their residences in the village were close to each other; the accused and the complainant were members of the soccer and netball teams of that village respectively; they went with other team members of these teams to Ravu Village to participate in a fundraising event in aid of Ravu Primary School; the closing item during that fundraising drive was a dance at the school on the night of 27 November 2004; the dancing area was sealed off with roofing iron sheets with an entry gate and that loud music was played during the dance; the entrance fee for men was $10.00 per head, whilst there was free admission for women; that the victim was an unmarried girl, whilst the accused was a married man; they joined the dance and later left the dance and had intercourse in the bush; they left the scene afterwards by a different route to the main road where they met a group of women which included female relatives of the victim; they accompanied this group back to their accommodation at Ravu Village; on the same day of this sexual encounter, the victim went to the police at Tulagi and lodged a complaint against the accused for rape and an for examination of her genitalia by a male registered nurse in the presence of two female nurses.
   

Facts in dispute

5. The accused disputed the following facts: that he led the complainant out from the dance by her right hand; this occurred at 3am on 28 November 2004; he took the victim out to meet a boy called Kairi; the victim struggled and cried to free herself from him at the bush; he told the victim that he was not taking her to meet Kairi but himself; he pushed her down to the ground to lay facing up; he removed her clothes, forced her legs apart, inserted his penis into her vagina and had intercourse with her without her consent; he gave a piece of cloth to her to wipe her vagina with; he threatened to kill her with a knife if she reported the incident to anyone; and that this was the first time for him to have intercourse with her.
   

The victim's version on the disputed facts

6. She says that about 3am, the accused approached her while she was dancing, and told her to go outside the dancing venue with him, which was sealed off with roofing iron sheets. He led her outside through the gate by her right hand. When they were outside, he told her while still holding her hand that he would take her out to meet a boy called Kairi. When she told him that the person was not her friend, he led her towards the bush some distance away from the dancing venue. When they were in the bush, he told her that he did not take her out to meet Kairi but himself.
   
7. When she heard this, she told him that he was related to her mother and threatened to report him to her other uncles. She cried and struggled to free herself from the accused's grip on her right hand. He ignored her and forced her to lie on the ground facing up. He removed his trousers and sat on her legs. He held both of her hands with one hand against her breasts and removed her skirt with his other hand. He then used both of his hands to remove her bra and black shirt. She closed her legs firmly but he separated them apart with his legs. He then forced his penis into her vagina and had sexual intercourse with her. He gave her a piece of cloth to wipe her vagina when he finished with her and returned her clothes to her. She did not agree to have intercourse with the accused. It was the first time for man to have intercourse with her and that the intercourse took some time. She experienced a lot of pain when he finally penetrated her with his penis. They left the scene and took a different route to the main road where they met a group of women walking towards Ravu Village after the dance. She accompanied these women to the Rest House where they had been accommodated during the fund raising event
   

That she and her niece spoke about the incident at the Rest House that morning.

Accused's version on the disputed facts

8. His evidence is that he joined the dance at 10pm after paying an entrance fee of $2.00. He danced with the victim three times. She was his girlfriend for three years, during which time he met her in secret many times and had intercourse with her on two occasions in her house at their village. He was very careful in keeping this friendship secret for fear of retribution by her relatives. They walked out of the dance that night in accordance with their agreed plan. He therefore did not lead the victim out of the dance by her right hand. He did not take her out to meet Kairi. They walked from outside the dancing area to the bush freely without him holding her hand. She never struggled and cried to free herself from him. That upon reaching a clear spot in the bush, he kissed her and played with her breasts. When they were both ready for intercourse, he and the victim removed their own clothes. The victim then lay on her back and he mounted her without any resistance. He penetrated her vagina with his penis easily with the slightest thrust. He did not ejaculate in her vagina but on her tummy. When he had finished with her, she cleaned herself with her own shirt. They put on their clothes and walked to the main road where they met a group of women. This was his third occasion to have intercourse with her during their friendship for three years; and he never threatened to kill her with a knife if she reported the incident to anyone.
   

Assessment of the accused and the victim's evidence on the disputed facts

9. The accused says that he ejaculated on the tummy of the victim and that she cleaned herself up with her shirt. He went on to say that she wore her clothes including this shirt before they met the women and accompanied them to the Rest House. It is common sense that no decent person would dare to wear such stinking shirt and mingle with other people such as in this case. His evidence that the complainant cleaned her vagina and his sperm from her tummy with her own shirt and then wearing it again is improbable and is rejected. The court accepts the complainant's evidence that the accused gave her a piece of cloth to clean her body.
   
10. Mr. Alatala was one of the persons responsible in collecting dance entry fees that night. His evidence is that the entrance fee for men was $10.00 per head whilst there was free admission of women. He saw the accused entering the dance venue around 3am after paying a reduced fee of $5.00. He saw the accused enter the dance and later led the victim out by holding onto her right hand. There is further evidence from Mr. Una, who was at the dance that night, who saw the accused leading the victim out of the dance by holding onto her hand. The court accepts the evidence of Mr. Alatala and Mr. Una, as supporting the complainant's evidence on this point, and rejects the accused's evidence that the victim walked out of the dance and the gate freely without any prompting from him.
    
11. The accused claims that the victim was his girlfriend for three years and had taken measures to keep that relationship secret. But the fact that he led her out of the dance by her hand and by leaving her to meet the women with him on the main road was inconsistent with any notion of keeping a friendship secret. That ejaculating on her abdomen, letting her wiping out his sperm with her shirt and then wearing that shirt again does not support any earlier long term friendship between them. The court accepts the victim's evidence that there was no friendship between them and that the accused first had intercourse with her on 28 November 2004. It rejects the accused's evidence that the victim was his girlfriend and that he had intercourse with her on two occasions before 28 November 2004.
    

The Charge of Rape

12. I remind myself on two important points of law. The first is that the burden of proving all the elements of the charge is on the prosecution. I can only convict the accused if I am sure that the prosecution has proved his guilt beyond reasonable doubt. The second is that I warn myself that it is dangerous to convict the accused on the evidence of the victim in the absence of evidence which "confirms', "supports" or strengthens" ([1]) her evidence. This means independent evidence which implicates the accused in the offence charged in a material particular ([2])
    

Medical evidence

13. Mr. Pego, a registered nurse examined the victim at Tulagi on 28 November 2014. The medical report on the genitalia of the victim reveals that she sustained a tear of about 2mm to the labium majus with spot bleeding, a tear of about 2-3mm to the perineum with spot bleeding, a tear to the hymen and a tear of about 2-3mm to the lower portion of the vaginal orifice (introitus) with spot bleeding. Mr. Pego concluded that these injuries were sustained as a result of forced and unprepared intercourse.
    
14. Dr. Vavala examined the complainant on 1 December 2004. That was three days after the accused had intercourse with the complainant. He found no injuries on the genitalia of the complainant. That is consistent with the healing process on this part of this body of female persons after forced intercourse.
    

Conclusion

15. The accused restrained the movement of the complainant from the moment he removed her from the dance to the time he permitted her to walk ahead to meet the women on the main road after he had intercourse with her. The court accepts the evidence of the complainant that the accused told her at the scene that he took her out of the dance to meet him and not to meet Kairi. Most importantly, the court accepts the evidence of the complainant that the accused used force on her on the morning of 28 November 2004. That force is independently confirmed, supported or strengthened by the fears on her hymen, labium majus, lower vaginal orifice (introitus) and perineum. These injuries are inconsistent with foreplay and gentle vaginal penetration of the complainant as described by the accused in his testimony. The court does not need to address the issue of full intercourse as this was admitted by the accused in his confession statement which the court will accept.
    
16. Finally, the court finds that the accused had intercourse with the complainant, that it took place without the consent of the complainant and that the accused raped the complainant pursuant to S. 136 of the Code.
    

Mr. Nathaniel Vuda is convicted of raping Ms. Elizabeth Geli at Ravu Village on 28 November accordingly.

THE COURT

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^[1] Hester [1973] AC 296 at pp.315, 321 and 323
^[2] Baskerville [1916] 2kB 658 at 667