Regina v Okisi [2008] SBHC 92; HSCI-CRC 72 of 2007 (27 November 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 72 of 2007

REGINA

V

KENDLEY OKISI

Date of Hearing: 5th, 15th - 19th - 23rd September, 16th October, 24th October, 31st October 2008
Date of Judgement: 27th November 2008

R. B. Talasasa (Director of Public Prosecutions) for the Crown.
R. Tovosia for the Defendant

Palmer CJ.

1. The defendant, Kendley Okisi ("the defendant") stands charged with the following offences:
   

(i) one count of attempted rape, alleged to have been committed on an unknown date in November of 2004;

(ii) two counts of indecent assault alleged to have been committed on November 2004 and on 25th December 2005;

(iii) one count of intimidation and molestation also alleged to have been committed in November 2004; and

(iv) seven counts of defilement alleged to have been committed on 1st February 2005, 8th August 2005, 6th October 2005, 25th December 2005, 4th March 2006, 13th April 2006 and 16th June 2006.

2. He pleaded not guilty to all of them. The victim is his step daughter, born to his wife from her first husband and was below the age of 13 years at the time of commission of those offences.
   
3. The defence essentially of the defendant is that of alibi evidence. He says he was not at the scene of the crime at the time alleged of the commission of those offences and called a number of witnesses in support of his case.
   

Counts 1, 2 and 3, of attempted rape, indecent assault and intimidation and molestation.

4. These three offences were alleged to have been committed on the same day in November 2004 and were part of the same transaction.
   
5. The Prosecution case is that on that day, the victim had accompanied the defendant to look for eggs of the megapode bird in the bush. While in the bush he approached her and forced her against her will to have sex with him. He couldn’t penetrate her however and ejaculated outside her vagina. He also touched her breasts at the same time and had threatened her with a knife when she refused his advances. The victim recalls this day as falling on a day the church at a village called Vara held their celebrations.
   
6. The defence case on the other hand is that on that day, the defendant had gone hunting with two of his friends and was out for the whole day. He only returned in the evening and therefore could not have committed any offence with her on that day. The defendant called one of his witnesses, Samuel Poro to give evidence. He told the court that on that day he had gone hunting with the defendant.
   
7. It is for the prosecution to prove beyond reasonable doubt that on that day the defendant had taken the victim with him to look for megapode eggs. Having raised material evidence to the effect that he was out hunting, it is for prosecution to disprove beyond reasonable doubt that on that day, which fell on the Vara Church day, the defendant could not have been out hunting and was actually with the victim.
   
8. I am satisfied the defendant had adduced credible evidence from his witness that he was not at his home. It is possible the date may have been mistaken by the victim but having identified it as falling on the Vara Church day and having produced no corroborating evidence the doubt raised in this case must go in favour of the defendant.
   
9. I am not satisfied that prosecution had discharged the onus in respect of this incident and so he must be acquitted of the charges in respect of those allegations.
   

Count 4 - defilement alleged to have been committed on 1st February 2005.

10. The prosecution case is that the defendant had gone fishing on this day and on his return had unlawful sexual intercourse with the victim.
    
11. The defence on the other hand says that he was out fishing for the whole night and only returned in the morning, therefore he could not have been involved in the commission of any crime as alleged.
    
12. The defence called one witness, James Kimi who told the court that on the evening of that day, 1st February 2005, he and the defendant had gone fishing during the whole night and did not return until the next day. Under cross examination however he explained that they were in different canoes and could see each other from a distance. On further cross examination he explained that usually when they go out fishing it would be throughout the night and returning in the morning. In his answer to probing questions from Mr. Talasasa he explained they usually return to their homes at day break. He also pointed out that he normally goes fishing on a regular basis and that in any week he may be out fishing on two to three occasions. He also pointed out that he could not recall clearly the other times or dates in February when he went out fishing but that if he does go out it would be throughout the night and returning the next day.
    
13. The victim on the other did not deny that he had gone fishing that evening but pointed out that he had returned later about midnight. Under cross examination she remained adamant, firm and very clear in her mind as to the time when he returned that night and what happened. She told the court that she was already sleeping when he returned and woke her up to cook some fish in an open fire for him. After she had cooked the fish and given it to him he told her to go to her room. When she refused his advances he persisted and told her to take off her skirt. When she again refused he took her skirt off himself and pushed his penis onto her vagina.
    
14. When it was put to her that it would have been quite impractical for the defendant to have sex with him that night as her mother and other sister were in the house at the same time, she explained that they slept in a separate room to her.
    
15. I have had opportunity to listen carefully to the evidence of the witnesses in this matter and observed their demeanour. I find the evidence of the victim to be more credible and reliable. She was never flustered or shaken when giving her evidence, in chief, cross examination or during re-examination. I am not very impressed however with the evidence given by James Kimi. While he says that the day they went fishing was on the 1st day of February 2005, he was not very convincing when it came to the actual events of that night. He gave the impression to me of someone who was not very sure about his evidence about that night. His evidence seemed to be based more on his knowledge and understanding of their fishing habits or practices, of going out fishing on regular basis and normally staying out for the night returning at day break. He did say that they were within eye sight of each other together with other canoes throughout the night and says he saw him returning the next morning. I am not satisfied however that his evidence on this point was convincing when contrasted with the evidence given by the defendant as to the exact events that transpired later that night, that the defendant actually returned home later in the middle of the night.
    
16. I also find inconsistency in the evidence of the defendant because during cross examination he gave a different reason or explanation as to why the crime could not have been committed by him. He stated under cross examination that in February 2005 the victim was at still at school and residing at a different village at Nagolau instead of at Tanade village, where the offence was alleged to have been committed. This is in contrast to his alibi evidence which he had sought to rely on from the outset that he was not at home or couldn’t have been at home at the said time as he was out fishing.
    
17. During cross examination of the victim it was never put to her that she was away from the village during that time. Both her mother and herself confirmed that during that period she was at home and not away.
    
18. I believe the victim’s evidence regarding this incident and accept her evidence as reflecting correctly what happened at that time. I am satisfied prosecution have established beyond reasonable doubt that the defendant did indecently assault the victim that night but failed to prove that he sexually penetrated her. Accordingly he will be acquitted of the offence of defilement but convicted of the offence of indecent assault contrary to section 141(1) of the Penal Code pursuant to section 169 of the Criminal Procedure Code (cap. 7).
    

Count 5 - defilement 8th August 2005

19. The prosecution case is that this occurred at a time when the victim’s mother had gone to church for prayers. On this occasion he again held her breast, put his penis on her vagina and ejaculated on her.
    
20. The defence on the other hand say that he was not at his home that day as he was somewhere else. The defence relied on alibi evidence in respect of this incident as well.
    
21. I have carefully considered the evidence in respect of this incident and come to the conclusion that the prosecution have failed to prove this allegation beyond reasonable doubt for the following reasons.
    

21.1. I find her evidence to be inconsistent regarding this incident. During examination in chief, she told the court that on that particular day her mother had gone off to attend prayers in the morning when the defendant came to her and did the same things to her. She told the court that she was sleeping when he came and woke her up. After holding her breast and ejaculating on her vagina, he told her to go and have her bath. When her mother returned she saw her having her bath and became suspicious it seems and asked her about it. She then told her mother about what had happened. During cross examination however, she told the court that this happened at night time. She agreed he was not at the house during the day but that he was at home in the evening.

21.2. I find inconsistency as well from the mother’s version about this same incident. The mother who gave evidence recalled two particular incidents of relevance. The first one occurred on a Sunday in 2005. On this particular Sunday she and her daughter had gone to church together. On their return her daughter went ahead. As she approached their house she heard her daughter making noises so she shouted to her in the house enquiring what it was about. The defendant was also present and when she asked him what he was doing to her, he told her that he was merely trying to give her a shirt to wear. The daughter however told her that when he gave the shirt he also tried to touch her body and hold her breast. He however denied this. Later that same day the mother told the court she confronted her daughter about her suspicions and she then told her about what the defendant had done to her.

21.3. The events described concerning this incident simply do not correspond. While the 8th August 2005 fell on a Monday the events described by the mother all occurred on a Sunday and during the day time. The evidence of the victim initially referred to a time in the day time but later agreed it occurred during the night time. It is not clear whether her mother was present at that time or was away at another village. The daughter also indicated that that occasion was the first time she related to her mother about what the defendant had been doing to her.

21.4. Having raised credible alibi evidence that on that particular date during the day time he was out and only returned later that evening it is for prosecution to prove beyond reasonable doubt that this incident occurred that evening when he returned. The inconsistencies in the evidence of the victim and that of her mother can only mean that the doubt raised must go in favour of the defendant. He is acquitted of this count.

Count 6 – Defilement, 6th October 2005

22. No evidence has been adduced in respect of this count and he must be acquitted.
    

Count 7 – indecent assault, 25th December 2005

Count 8 – defilement, 25th December 2005

23. The prosecution case is that on this day the defendant had gone to Horara and on his return woke up the defendant and sexually assaulted her.
    
24. The defence case is again based on alibi evidence that the defendant was away that day and so could not have committed those offences.
    
25. In her evidence in chief the victim told the court that her mother had gone to Rasa village while the defendant had gone to Horara during the day but that the offences were committed on his return. In cross examination she pointed out that her mother had gone to Rasa as part of the mother’s union for prayers. She confirmed in cross examination that the defendant had gone to Horara that day but explained that the offences were committed on his return.
    
26. In his evidence in chief the defendant told the court that he had gone for the whole day to Rasa village with a friend called Roland. He says he did not return until the evening. In cross examination he told the court that the victim was not present at home that evening as she had gone out for the whole night and only returned the next day.
    
27. Roland Ellikington gave evidence confirming that he and the defendant had gone to Rasa village for the whole day returning in the evening at about six o’clock.
    
28. According to the evidence of the victim the offences were committed on his return. In an attempt to explain this bit the defendant says that the victim was not at home that evening. He also says that his mother was home that evening. This however was never put to the mother whether she was home that evening or away.
    
29. Also during cross examination of the victim it was never put to her that she was not at home that night and only returned in the morning. If this was the case of the defence then he was obliged to put this to the victim to answer or explain. It appears to me that the reason why this was never put to the victim was because the case for the defence all along had been based on his alibi evidence that he was not at the scene of the crime that day. However when it became obvious that this was not going to be successful as the allegations related to events which occurred later at night he suggested this explanation.
    
30. I accept the evidence of the victim on the other hand regarding this incident. She gave very clear, concise and consistent evidence about this incident. The only variation in her evidence related to her description of the place that she said he had gone to during that day; she mentioned Horara. He had gone however to Rasa and not Horara it seems. This mistake however is not fatal to her evidence because she did agree in cross examination when it was put to her that he had gone out for the day but then pointed out that the offences occurred at night. She says she was already asleep when he arrived and was woken up before being assaulted her.
    
31. I am satisfied prosecution have discharged onus of proof regarding this incident. I am not satisfied however that penetration was achieved and therefore he must be acquitted of the offence of defilement. I am satisfied the allegations clearly amounted to the offence of indecent assault and convict him of this offence.
    

Count 9 – defilement 4th March 2006

32. The prosecution alleges that the defendant had unlawful sexual intercourse with the victim at their house. In her evidence the victim told the court that after she had gone for prayers she decided to go fishing. When she asked her mother for some fish hooks she was told that there was none. She said she then stayed at home. Her mother then went off to the market. She told the court that when the defendant returned from the bush he came to her in her room held her breast and put his penis on her vagina and ejaculated on her. The most she described he achieved was pushing his penis onto her vagina but that there was no clear evidence of any form of penile penetration.
    
33. The defence case was again based on alibi evidence that he was not home. In his evidence in chief he told the court he had gone hunting that day with Samuel Oro and Mathew Mae.
    
34. I have listened carefully to the evidence adduced in respect of this incident and weighed carefully what was said including observing the demeanour of all witnesses when giving evidence about this incident.
    
35. I find the evidence of the victim to be credible and more reliable in respect of this particular incident. She gave clear, detailed and consistent evidence and was never shaken about those events. During cross examination she told the court the defendant had gone fishing that day but returned in the afternoon. She maintained despite being pressed that he did something to her that day.
    
36. I find on the other hand the evidence of the defendant to be very inconsistent. On one hand his defence was based on that of an alibi witness, that he could not have committed any offence as he was away that day. In his evidence in chief he had told the court that he had gone hunting that day with two friends, Samuel Oro and Mathew Mae ("Mae"). Samuel Oro however never gave any evidence at all about any hunting trip on that day. Mathew Mae, the other alibi witness in his evidence only spoke about going to the garden with the defendant with others that day. This was never mentioned by the defendant during examination in chief. He only spoke about going hunting with his friends nothing about going to the garden. During cross examination, Mae became confused about the date they went to the garden. He was sure it was on the 4th of June and even agreed that it was the correct date during re-examination. I was not very impressed with his evidence in respect of this incident whether it actually occurred on the 4th March 2006 or not or any other date. I reject his alibi evidence.
    
37. The defendant contradicted himself even further during cross examination when he told the court that the victim was not at Tanade for that whole month of March. He eventually remembered the name of the village that he alleged the victim had gone to spend the whole month with her girl friend. This version of events was never raised in cross examination of the victim or her mother and appears to have been pulled out on the spur of the moment to try and cover his tracks as much as possible and put forward alternative explanations in the hope that one of them will be accepted it seems. To the contrary it only goes to show how unreliable his version of events are and must be rejected.
    
38. I am satisfied that prosecution have established beyond reasonable doubt that on this particular date the victim was indecently assaulted by the defendant. I am not satisfied however that prosecution have established to the requisite standard that the offence of defilement had occurred and accordingly he must be acquitted of that count. I convict him however of the lesser offence of indecent assault contrary to section 141(1) of the Penal Code. Again the provisions of section 169 of the Criminal Procedure Code permit me to commit him of a lesser offence even though he was not charged with it.
    

Count 10 – defilement 13th April 2006

39. The prosecution case is that he also had sexual intercourse with the defendant on this date.
    
40. The defence case on the other hand is that the defendant was not at home on this occasion as he had gone off to look for local (bush) rope for his thatched house. He says he was out for the whole day and returned only in the evening.
    
41. In her evidence in chief the victim told the court that on that date she had gone to their garden to collect kumara (sweet potatoes). While she was there, the defendant came along and told her to accompany him to go and trap birds. After doing that he pulled her into the bush, took her shirt off and made her to lie down. He then held her breast. She told the court that when she cried he told her not to. He then pushed his penis onto her vagina and ejaculated on her. When they returned home she went to have her bath and the defendant went fishing.
    
42. I have again carefully weighed the evidence in respect of this particular offence and satisfied that the victim’s version is more credible and reliable. She gave clear, detailed and consistent evidence which had not been contradicted or challenged in any way by the defence. The defence case was never put to her in cross examination to contradict or explain.
    
43. The defendant on the other hand during cross examination changed his version of events to say that she was also away for the month of April at Kolomusu. His defence raised then was that she was away for that whole month and so even when he returned in the evening after collecting bush rope in the bush she was not home. I do not believe him on this. I find his evidence to be contradictory and this new version was made up to try and cover up his tracks in terms of what had happened that day.
    
44. The case for the prosecution was that the alleged incident occurred during the day time.
    
45. I am satisfied prosecution have established the offence of indecent assault but not of defilement and he must be acquitted of that offence. I convict him under section 169 of the Criminal Procedure Code of the offence of indecent assault contrary to section 141(1) of the Penal Code.
    

Count 11 – defilement 16th June 2006.

46. The prosecution alleges he committed the offence at their home as well.
    
47. The defence say he was away that day in the bush with his daughter Neverlyn and another girl called Mary (a daughter of his wife’s sister), picking nuts. When he returned he did not see the victim.
    
48. I have weighed carefully the evidence adduced in respect of this allegation and again come to the conclusion that the evidence of the victim is clear, consistent and unchallenged. She stated that the offence occurred at their home that day.
    
49. The defendant on the other hand told the court that he was not home that day and so could not have committed the offence but then during cross examination told the court that the victim was not at home as she had gone out for the night to stay with an auntie of hers called Helen.
    
50. The offence however was not alleged to have been committed in the evening but during the day time.
    
51. I find the evidence of the defendant to be evasive, ambiguous and inventive. It seems that he is quick to invent or make up a story on the occasion to try and build a plausible explanation of his movements to cover his tracks. Many of the explanations he raised in cross examination were never raised or put to prosecution witnesses. The main defence which he had raised from the outset was that of alibi evidence but this then changed to the victim not being present at those stated times to suit his case.
    
52. The evidence adduced in the chiefs meeting when his activities were reported to them to inquire into confirmed the evidence of the victim. In his defence he argued that he admitted the allegations against him before the chiefs merely to get the meeting over with but never acknowledged the substance of the allegations as true. He further argued that the real reason he was brought before the chiefs for was more about the offending words he had used when he asked the victim about what she thought about the fact that her mother was always jealous of him.
    
53. I have listened carefully to the evidence of Josiah Pone, Nathalae Sam and Dramond Tiro regarding the events surrounding the chief’s meeting. One thing which is quite clear from their evidence is that there was never any doubt in their mind as to what the allegations against the defendant was at that meeting. The allegations were that he had committed sexual intercourse with the victim. The case had been reported to the chiefs by the mother so that it can be resolved in custom. They told the court that after the defendant had admitted the allegations they then retired and fixed a custom penalty of one pig worth about $800.00 and one thousand dollars cash.
    
54. I find the evidence of the chiefs about this meeting to be clear, straightforward and consistent. They were merely carrying out their customary obligations and their evidence about what happened amply demonstrated they sought to be fair and understanding about the matter and to calm everyone down about the allegations. I accept their evidence as being accurate and his admission to be consistent with the evidence of the victim about what the defendant had done to her.
    
55. The evidence of the medical doctor is relevant only in so far as it supports the view that the victim could only have contracted pelvic inflammatory disease from sexual contact. According to the victim she had not had sexual intercourse with anyone else other than the defendant prior to the medical examination. If that was true then she would have contracted this from the defendant. She did however under cross examination confirm that she had had sexual intercourse with another boy but this was after the medical examination. In her evidence before this court however, she never actually confirmed or stated when asked clearly if sexual intercourse ever occurred. She may have been embarrassed about it or may have meant by her description that sexual intercourse had indeed taken place but I cannot be sure that this is what she meant and that it did take place. She always said that the defendant ejaculated on top of her and at no time mentioned that he had actually ever penetrated her. On those grounds I am unable to say that the medical evidence supports the prosecution case that sexual intercourse had taken place though I am more than satisfied that the offences of indecent assault had been committed on her on several occasions.
    
56. I find as follows:
    

Count 1, 2 and 3: Find the defendant not guilty and acquit him of these counts.

Count 4: Find him not guilty of defilement and acquit him of that count but find him guilty of the offence of indecent assault and convict him accordingly.

Count 5: Find him not guilty and acquitted.

Count 6: Find him not guilty and acquitted.

Count 7 and 8: Find him not guilty of defilement but guilty of indecent assault and convict him accordingly.

Counts 9, 10 and 11: Find him not guilty of defilement but guilty of indecent assault and convict him accordingly.

The Court.