Regina v Paul [2009] SBHC 47; HCSI-CRC 348 of 2007 (18 September 2009)

HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

Criminal Case No. 348 of 2007

Regina

V

Eddie Paul

Hearing: 25, 26, 27 and 31 August and 1 and 2 September 2009
Judgment: 18 September 2009

DPP in person and Ms Tafoa for the crown
Mr. Cavanagh for the Accused

JUDGMENT

Mwanesalua J: Rebecca Bosa Vasia, ("the Victim"), was at New Geza Village, on 9 January 2006. Eddie Paul, ("the accused"), was also there that day. The victim alleges that the accused raped her that day. The accused was arrested at night on the same day and remanded in custody over night at Tetere Police Station. On the following day, 10 January 2006, he gave a caution statement to the police at the Sexual Assault Unit at Rove regarding the allegation. The statement was in question and answer form.

The relevant facts in that statement are that: the victim was washing clothes at the stream at the village on the afternoon of 9 January 2006. The accused approached her and told her that he liked her. After talking to her he went to Loxie’s house and sat on a veranda close to the door into the house after hanging the clothes outside, the victim went into the house, closed the door and pined it with a nail; the accused placed his hand through a gap, opened the door by twisting the nail and went into the house on his on accord; she told him to go outside; he ignored her and had sex with her after he told her to bend forward and remain quiet; he had sex with her for a short time because she was unwilling to have sex with him, as she was afraid of him. He realized that what he did to her was wrong and immediately left her. He recognized the pant in photograph 40 of Exhibit 7, as the one which the victim wore when he had sex with her. The statement was admitted after a voir dire was held as to its admissibility.

The accused is charged with rape under section 136 as read with section 137 of the Penal Code (cap 26). He pleaded not guilty to this charge during the arraignment. The issue in this case is whether the accused had sex with the victim on 9 January 2006 without the consent of the victim. It is for the prosecution to prove this issue beyond reasonable doubt before the court can convict the accused of rape.

These facts are generally not in dispute in this trial. The victim lived with Francis Loxie ("Loxie") and his family at New Geza village on 9 January 2006. She had been living there about a year before this date. Loxie built his family house near a stream at the village. The victim lived with Loxie and his family in that house ("the house"). Loxie went to Honiara in the early morning of 9 January 2006. His wife and his children were not in the house on that day. The victim went to the stream to do the laundry in the afternoon. The accused went to her while she was washing the clothes. He squattered near her at the eastern bank of the stream and started a brief conversation with her. The relevant parts of this conversation were related by the victim in her evidence as follows: "Eddie came and sat on his knees and asked me, "I like you". Then I said, "I don’t want". Then he said, "Why don’t you like me? I look much nicer than you’. Then he said, ‘Are you afraid of me, I might kill you? Then I said "No". The accused walked down the stream after the conversation ended. He went back to the village and sat down on the veranda near the main door into Loxie’s house. The victim saw him sitting there when she went into the house to change after she hanged the clothes at a clothe line behind the house. The alleged rape occurred in the house after she got changed into her pant and pair of shorts. She cried during the alleged rape. The victim then left the house and caught a bus at the main road to look for Loxie at Honiara Market as she was frightened of the accused (Rebecca Teika ("Teika") and Sicily Vakalea ("Sicily") met and spoke to the victim, when she walked past them in the village to the main road to catch the bus to Honiara.

The evidence of the victim relevant to this charge of rape is this. She went to the front of the house after hanging up the washing behind the house. She saw the accused sitting on the veranda with his knife to her right near the door to the house. She opened the door and stepped up into the house. She closed the door behind her and pinned it with a nail fixed to the frame of the door (see photographs marked 20 and 21 of exhibit 7). She then changed into a pant and shorts. She felt someone entering the house. She glanced to the door and there was the accused. She wanted to run out but the accused blocked the door way. He grabbed her with one of his hands, turned her back towards him and bent her down forward. He used his other hand to push his pant down and pushed the victim’s clothes down, while she resisted him by pulling them up. This resistance caused her pant to be ripped at its left side (see photograph 40 in Exhibit 7). He pushed his penis into her vagina from her back, said sorry, withdrew it and left her. She felt slippery in her vagina when his penis was there. She did not call out for help during the assault but she cried. She walked to the main road and boarded a bus to Honiara to look for Loxie at the main market because she was scared of the accused. She met Teika who spoke to her when she was on her way to the road. She was crying. She nodded her head, when Teika asked whether the accused did it to her. She only nodded her head without talking because she was afraid of the accused who was still in the village. The victim explained in evidence, that she said "No" to the accused at the end of their conversation at the stream, because she was scared of him. Teika saw the accused in front of Loxie’s house close to the door and then moving his knife as if he was brushing while squatting on the ground, before she met and spoke to the victim on her way to the road.

The accused gave an unsworn statement from the dock at the close of the prosecution case. He says that he had sex with the victim following their plan. This court reaches a contrary conclusion after considering the entire statement with the prosecution evidence. The reasons for that conclusion are these: the victim has shown no interest in the accused’s sexual advances to her at the stream; she closed the entry door to the house and pined it with a nail before she changed into her clothes, while the accused was sitting on the veranda outside; he placed his hand through a gap, twisted the nail, opened the door and entered the house on his own accord; she told him to go outside when he entered the house; she wanted to escape outside but he blocked the door way; he grabbed her and forced her to bend forward; she resisted him from pushing her pant and shots down from her waist and the pant was ripped; she did not respond and was afraid of him while he penetrated her; he immediately ceased having sex with her when he realized that he was wrong in doing so; she cried and went to Honiara to look for Loxie because she was afraid of the accused. That fear persists to this trial as demonstrated by her evidence, when she said that she had not seen the accused prior to 9 January 2006; The court does not believe the evidence that the victim had another conversation with the accused at the house and later invited him into the house to have sex with her.

The defence case is that there was consential sex between the victim and the accused. This was made on the basis that the victim sustained no injuries from the assault; she did not call for help when the alleged rape occurred; she failed to avoid the accused, when she saw him sitting at the veranda at Loxie’s house.

A medical report was produced on the victim after a doctor saw her on 10 January 2006. This report revealed no injuries on her external body nor in her female genitalia. The significance of this report is that it revealed a painful area at her lower back. The evidence shows that he pushed his penis into her vagina from her back. Lack of injury to the female genitalia does not support that there was consential sex between the victim and the accused. According to the medical report, the victim was not a virgin. Her evidence was that he merely had sex with her for a short time without responding to him at all. And he only used force necessary to achieve penetration. Caution need to be taken about injuries in the female genitalia as an indication of rape. This is because such injuries may also be the result of over enthusiastic voluntary intercourse. The victim did not call for help because he acted swiftly to get her submit to him, told her to remain quiet and had sex with her. There is evidence that she pinned the door when she entered the house. That was indication to the accused that she feared and did not want him with her in private.

In conclusion, there is evidence before the court, proving beyond reasonable doubt that the accused had sexual intercourse with the victim without her consent on 9 January 2006. That is rape. Eddie Paul is therefore convicted of the offence rape accordingly.

F Mwanesalua J
THE COURT