Regina v Okisi [2008] SBHC 51; HCSI-CRC 72 of 2007 (17 October 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 72 of 2007

Regina

v

Kendley Okisi

High Court of Solomon Islands
(Palmer CJ.)

Date of Hearing: 16th October 2008
Date of Ruling: 17th October 2008

Director of Public Prosecutions for the Crown.
R. Tovosia for the Defendant

Palmer CJ.

1. Kendley Okisi ("the defendant") has been charged with one count of attempted rape, two counts of indecent assault, one count of intimidation and molestation and seven counts of defilement. Those offences were alleged to have been committed between November 2004 and June 2006. He entered a plea of not guilty to all of them. The victim is his step daughter and was below the age of 13 years at the time of commission of those offences. She was born on 14th July 1993 to his wife from her first husband. When he married his wife, Annie Boinidia in 1998, the victim would have been only about five years old. He then became her stepfather and helped in raising her up in those years to the time of commission of the first alleged offences in 2004. The victim would then have been at a tender age of eleven years old.

2. The prosecution called a total of eight witnesses, including the victim herself and her mother. At the close of prosecution case, defence made a submission of no case to answer.

3. The gist of the no case is based on the submission that there was no direct evidence of penile penetration or that sexual intercourse ever took place.

4. The law in a no case submission has now been fairly established in this jurisdiction by the Court of Appeal in the judgment of Regina v. Tome, Na’asusu (2004) SBCA 13, CASI-4/04 (10th November 2004); and Regina v. Somae (2005) SBCA 11, CASI-3/04 (4th August 2005). The Court of Appeal in Regina v. Tome[1] had held that:

"The test then 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."

See also Regina v. Somae (ibid) in which the Court also reiterated the test as follows:

"...there must be some evidence capable of establishing, whether directly or inferentially, every element of the offence charged beyond reasonable doubt."

In Regina v. Tome at paragraph 6, the Court of Appeal pointed that:

"The test called for by s 269(1) is whether or not there is no evidence that the accused committed the offence." That must mean that if there is some evidence that the accused committed the offence the case must proceed to final determination by the tribunal of fact."[2]

5. The issue at this no case submission therefore is whether there is evidence before this court that the defendant committed the various offences he had been charged with. Issues of credibility, weight, inconsistencies of evidence (whether within the testimony of a witness or as between witnesses), are irrelevant at this point of time.

6. On the question whether there is evidence of attempted rape, the evidence as adduced is clear. The victim described how she had been lured by the defendant to look for some eggs and then attempted to rape her. She described how she had refused his advances but then could not resist him as he was much older and stronger than her. He was also holding a knife at that time. There is evidence which seems to point to the fact that the reason there was no actual penile penetration was due to the fact that he could not achieve penetration as her vagina was small. But even if the offence of attempted rape may be dismissed there is also evidence of indecent assault, intimidation and molestation as set out in counts, 2 and 3. I am not satisfied therefore that it can be reasonably contended in respect of counts 1 – 3 that there is no evidence such that the defendant should be acquitted of those charges.

7. The remaining counts of indecent assault and defilement can shortly be dealt with as well. There is evidence that on numerous occasions, the victim actually estimates this to be about eleven occasions, it could very well have been less or more, bearing in mind the accuracy of her powers of recall in view of her tender age but also the lapse of time, that there was fondling of her breasts, fingering of her vagina and on numerous occasions she described him as lying on top of her and moving his buttocks up and down. She also described sperm pouring on her vagina and also described him putting his penis on her vagina. She also made reference to the fact that when she visited the doctor for check up, no one had had sexual intercourse with her except the defendant. The doctor’s evidence is consistent with her version of having had sexual intercourse prior to that visit. If her evidence is to be accepted that she had sexual intercourse with Garryson (a boyfriend) after the visit to the doctor in October 2006, then there is evidence of defilement as set out in the charges against the defendant.

8. The evidence of other prosecution witnesses are also capable of being construed as supporting her version of events and cannot at this point of time be viewed as destroying or rendering her evidence from the outset as unreliable, unconvincing or insufficient. The question whether such evidence is inconsistent, lacking credibility or unreliable, should be left till after close of trial. The issue for determination in a no case is whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty of the offences of defilement and indecent assault, not whether the prosecution has proved its case beyond reasonable doubt.

9. Counsel for the defendant has sought to premise his submissions more on issues of credibility, weight, inconsistency and reliability, but matters which should more appropriately be dealt with at close of trial.

10. I am not satisfied therefore that I can make a finding of no evidence in respect of the charges that have been raised against the defendant at this point of time and require that he be put to his defence in this matter. But before doing that the learned Director made reference to the approach in R. V. Galbraith [1981] 1 WLR 1039 at 1042 in which it was held that even if a judge finds that there is a case to answer, where the prosecution evidence is of tenuous character, such as where it is inherently weak or vague or inconsistent with other evidence, that the courts in England would have been obliged to make a finding of no case to answer. The position in Solomon Islands however has now been set out succinctly in Regina v. Tome and R. V. Somae, in which the Court of Appeal set out the test that, it 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. This simply means that even if the prosecution evidence is of tenuous character, inherently weak or vague or inconsistent, but if there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty, then the matter should go to trial. This is the similar test formulated by the High Court of Australia in Doney v. The Queen[3] in which it stated that even if the evidence is tenuous or inherently weak or vague but if it is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Regina v. Tome is the case authority for the test of no case now in Solomon Islands. At the end of the day it will still be a matter for each court to decide in a no case, to determine whether at close of prosecution case, it can legitimately make a finding of insufficient evidence capable of supporting a finding beyond reasonable doubt such as to put the defendant to his defence.

The submission of no case is dismissed.

The Court.

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^[1] (ibid) at paragraph [10].
^[2] Regina v. Tome (ibid) at para. (6).
^[3] (1990) 171 CLR 2007