Regina v Luimalefo [2008] SBHC 71; HCSI-CRC 224 of 2007 (11 December 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 224 of 2007

REGINA

V

DAVID JEFFREY LUIMALEFO

High Court of Solomon Islands
(Palmer CJ.)

Date of Hearing: 27th - 31st October, 13th November, 28th November
Date of Judgement: 11th December 2008

M. Coates for the Crown
K. Anderson (Mrs.) for the Defendant.

Palmer CJ.

1. The defendant, David Jeffrey Liumalefo has been charged with three counts of attempted rape in the months of July 2006, August 2006 and 7th December 2006. He pleaded not guilty to all three counts.
   
2. The prosecution relies primarily on the evidence of the complainant. Other witnesses were called including her mother to bolster support for her credibility and description of the incidents.
   
3. This case turns essentially on the credibility of the complainant and her description and version of the events alleged.
   
4. The defendant did not call any witness. He gave a dock statement in which he denied commission of all those offences.
   

Count 1 – attempted rape July 2006.

5. For the following reason I find that prosecution have failed to prove that the defendant committed the offence of attempted rape.
   
   • 5.1 I accept submission of Mrs. Anderson in respect of this count that there is inconsistency in the account of the complainant regarding what occurred during this month in her evidence compared with what she told Police in her statements of 10th and 16th December 2006. In her statement of 10th December 2006 she did not mention anything about any attempted rape.
     
   • 5.2 In the statement of 16th December, she merely told Police that he had asked her if she wanted to be free and threatened to cut her with a knife if she refused, but did not say anything about any attempt to rape her. She stated she ran away from the house when he left for the garden.
     
   • 5.3 I accept submissions of Mrs. Anderson that she had opportunity to disclose to Police if any attempt to rape her had been made but did not. She had ample opportunity throughout the interview and thereafter, and the fact this was not mentioned until 27th October 2008, which was the day before the trial, throws doubt on the reliability of this incident.
     
   • 5.4 While I note submissions of Mr. Coates regarding the difficulties such a young girl is bound to find herself in when talking about such unpleasant and extremely embarrassing experiences, the unreasonableness of the delay in making the complaint and the circumstances in which the allegation could have been disclosed must go in favour of the defendant. I am not satisfied therefore the onus placed on prosecution has been discharged in respect of this allegation. I find him not guilty and acquit him of this offence.
     

Count 2 – attempted rape August 2006.

6. For the following reason I find that prosecution have also failed to prove beyond reasonable doubt that the defendant committed this offence.
   
   • 6.1 I find inconsistency in her evidence when contrasted with what she told Police. In her statement of 10 December, she merely told Police he had asked her to have sex with him on four occasions.
     
   • 6.2 In her statement of 16 December she had opportunity to disclose to Police the allegations in respect of this incident but did not. She merely told Police he had asked to do something with her but she had refused. When he left for the coconut plantation, she ran away to her girl friend.
     
   • 6.3 In her evidence in court she confirmed she told her girl friend the defendant had asked to go with her. Her girl friend confirmed this in her evidence. The complainant never told her girl friend if the defendant had touched her or attempted to rape her.
     
   • 6.4 There may have been valid reasons for not disclosing to her girl friend the shameful things which the defendant had done to her, I accept submission of Mrs. Anderson that her non-disclosure to the Police in her statements of 10 December, 16 December and subsequent statements should be construed in favour of the defendant. I find him not guilty and acquit him of this allegation as well.
     

Count 3 – attempted rape 7th December 2006.

7. The evidence and circumstances in relation to this incident are more distinct and specific than the previous incidents.
   
8. The complainant told the court that on this occasion her mother had left for town and she was alone at home with the younger children and the defendant. He called her into the house and propositioned her. When she refused he told her that he was the one who had looked after her and that what he asked her was to be his payment. While they were in the room her older sister arrived with another girl. She walked out and washed their dishes. She told the court her sister followed her and asked her what they were doing in the house. She told her he had asked her for forgiveness.
   
9. I find her evidence in respect of this allegation to be specific, detailed and consistent throughout.
   
10. Her sister confirmed that on arrival she saw the defendant and complainant alone together in the house. She told the court she felt cross (angry) about this and enquired from her what they were doing in the house. She confirmed what the complainant told her about the defendant asking to pray for forgiveness. She then changed and left shortly after.
    
11. She however told her mother when she saw her the next day to ask the complainant about this as she had noticed from her appearance and eyes she appeared frightened and shy.
    
12. I accept this witness’s evidence as supporting the credibility of the complainant in respect of her account of the events that transpired that day. It is significant she noticed something was not right when she saw the defendant and the complainant together in the house on arrival. While I do bear in mind the submission by Mrs. Anderson that it would not be unusual for them to be together or alone in the house, there is a difference between a perfectly innocent and natural presence in the house as opposed to one which is wrong, improper and in this case unlawful. The sister did not fail to notice that something was amiss and only confirms and supports the complainant’s evidence that the sister’s arrival was at a time when the defendant was propositioning the complainant for sexual intercourse.
    
13. I note submission of Mrs. Anderson that the sister should have stayed on if she was concerned something was not right, but equally the fact she did not remain should not render her evidence unreliable. Having obtained an explanation from the complainant, there was equally no reason for her to remain in the house. She did tell the court though that she told her mother to question the complainant carefully about her observation. This was confirmed by the mother. The mother told the court that the sister told her that she was cross with the complainant when she saw her with the defendant alone in the house and noticed something not right about her appearance.
    
14. I am satisfied this is consistent with and supports the complainant’s version of events regarding that particular time.
    
15. Following the sister’s departure, the defendant called her back into the house and told her to take her clothes off and lie down on the bed. She told the court she complied as she was frightened and because he also had a knife with him. She told the court he tried to penetrate her but could not and ejaculated outside. She told the court she cried because it was painful when he was trying to penetrate her.
    
16. She then ran away after this to Tuvaruhu. The defendant and her mother saw her the next day and told her to return with them to their house. When asked by her mother why she had run away she then told her mother that the defendant had wanted to go with her.
    
17. While I note she did not mention to her mother on this occasion that the defendant had actually attempted to rape her, it does not necessarily follow that her evidence is unreliable. There are valid reasons why a very young victim in her case would not disclose even to her mother details of what the defendant had done to her. There are cultural reasons, as well as the fact that the defendant was still living with the mother and that she may have felt quite uncomfortable about having to disclose such details to her mother, who is also the wife of the defendant. She may also not have had a very close relationship with her mother and therefore may not have felt comfortable enough to reveal such details to her. I am not satisfied her non-disclosure of the attempted rape to be fatal or diminishes her credibility and reliability of her evidence. She had in fact indicated that she was frightened to reveal this to her mother.
    
18. It has been submitted that the court may consider that it would have been highly unlikely for the defendant to report the matter to the police and to the Tasius (Church of Melanesia Brothers) if the defendant was attempting to have unlawful sexual intercourse with the complainant. On the other hand, the opposite can also be true. If her running away was like other occasions when she would just go off to her aunty or friend or relative without telling anyone at any time, why would the defendant be so worried or concerned? He would have known where to find her and not be so overly concerned about it on this particular occasion unless he knew that it was because of him and what he had done that was the cause of her running away. It is consistent with a guilty mind or his conscience bothering him so much that they had to go to those extents to look for her.
    
19. It has also been submitted that the fact she only told her sister about the defendant only asking to pray for forgiveness demonstrated her unreliability. On the other hand, it could also be reflective of her young age when she gave such explanation as the matter was too embarrassing or sensitive for her to talk about openly in the circumstances. Her evidence nevertheless is consistent with what the sister told the court. In spite of that explanation, her sister did not fail to notice that something was amiss and that there may have been more to what she was telling her from her appearance.
    
20. Her actions in running away thereafter is consistent with her feelings of having been hurt, distressed and emotionally and mentally affected by what had been done. That she ran away immediately after the incident has never been seriously challenged or denied and is consistent with her evidence that only something drastic could have happened to cause her to run away, a fortiori when she had just returned the previous day, 6th December, after being away from home since 26th November. Why would she run away so soon the next day? If it was the case that the defendant had not done anything to her that day, why would she run away? The only explanation she gave and a plausible one at that was that he had done something drastic to her so much so that this was the only way she could express herself or respond to it, by running away.
    
21. It has also been submitted that her evidence should be treated with caution where she had stated that she had told her sister she was frightened when her sister did not recall anything to this effect. While that may be so, it did not escape her sister that she did appear shy and frightened and made a point about telling their mother about it. I am not satisfied therefore the fact her sister did not recall this to be sufficient to discredit her evidence regarding what happened on that occasion.
    
22. It has also been sought to be submitted that the complainant’s evidence is inconsistent with the medical evidence in which Dr. Kaikai had stated that if force was applied to the vagina that some damage would be visible to the hymen. During cross examination he did indicate that it would be unusual not to have any damage in a case of attempted rape. However, he did concede during re-examination that this would be dependent on a number of factors, including the size of the penis, the size of the vaginal opening, the force applied and whether there was a struggle. He conceded that in the absence of such factors it would not be possible to determine whether damage had occurred to the hymen or not.
    
23. While the medical evidence showed that no damage was visible to the hymen of the complainant, I am not satisfied this supports the suggestion that her evidence is to be viewed as unreliable. At no time did she say that she had suffered any injuries to her vagina or that she saw any blood which may have indicated such injury. The most she described was that it was painful and that she cried when he tried to penetrate her. When he failed to penetrate her he ejaculated outside her vagina. I am not satisfied therefore that the medical evidence in anyway discredited her version of what transpired.
    
24. In contrast the defendant elected to give a dock statement. There is no onus on him to prove anything. His statement that he left the house shortly after the mother left the house and was away during the time it was alleged he was at home, I do not accept as true, when contrasted with the evidence of the complainant, her sister and her mother, not seriously challenged or undermined in cross examination about the events of that day. While the sister had forgotten the exact date she went to the house with her cousin, she was sure it was on a Thursday because she told the court she met her mother the next day which was a Friday in front of a store at Lungga.
    
25. The mother confirmed this meeting to have taken place on the next day of the alleged incident, which was Friday 8th December; the alleged incident occurred on Thursday 7th December 2006. I accept their evidence as true because not only was it convincing, but it was also consistent and clear throughout. I believe their account of the events of that day.
    
26. I warn myself again of the dangers of convicting on the uncorroborated evidence of the complainant alone in respect of this particular allegation. I am satisfied that the events immediately prior to and after the alleged incident have been clearly verified by supporting prosecution witnesses whose evidence I accept as true and correct. I am satisfied that the credibility of the complainant in respect of this particular incident has not been seriously undermined despite being challenged seriously in cross examination. She remained firm, unshaken and clear in her mind about what happened that day.
    
27. For all the reasons stated herein I am satisfied so that I am sure that on that date 7th December 2006, the defendant attempted to rape the complainant. I am satisfied so that I am sure that he intended to rape the complainant despite her protests and refusals and the only reason he did not commit the offence of rape was because he could not achieve penile penetration despite making several attempts to do so. Eventually he ejaculated outside her vagina.
    
28. I find him guilty of the offence of attempted rape in respect of this third count and convict him accordingly.
    

Orders of the Court:

1. Count 1: Find defendant not guilty and acquitted.
   
2. Count 2: Find defendant not guilty and acquitted.
   
3. Count 3: Find defendant guilty and convicted.
   

THE COURT.