Regina v Usa [2009] SBHC 8; HCSI-CRC 183 of 2007 (24 February 2009)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 183 of 2007

REGINA

-v-

CHRIS USA

(Naqiolevu, J)

Date of Hearing: 29th, 30th Sept, 1st, 2nd, 7th, 10th, 14th, 15th, 16th Oct,
27th, 28th Nov. 2008
Date of Judgment: 24th February 2009

For Crown: Ms R. Olitimayin
For Accused: Mr. S. Balea

Judgment

Naqiolevu J: The accused is charged for the offence of Rape contrary to Sections 136 of the Penal Code.

FACTS

1. The crown allege that the accused had unlawful sexual intercourse with the victim on the 5th of May 2006, between the hours of 11:00pm and early hours of Saturday 6th of May 2006, without her consent.

Law

2. The offence of Rape is defined under Section 136 of the Penal Code.

Section 136,

"Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats on intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of false representations as to the nature of the act, or in the case of a married woman, by personating her husband is guilty of the felony termed rape".

Elements of Rape

3. The elements of the charge of rape under Section 136 are in

3.1 Defilement

3.2 Unlawful Sexual Intercourse

3.3 Complaint

3.4 Without Consent

Facts of the Crown

4. The offence was committed between the night of Friday 5th of May to the early hours of the morning of 6th of May 2006.

5. The victim upon returning with two boys Fredrick Saki and Rodney Taraha to their village in Vatukola from a fund raising dance.

6. It is not disputed that the accused had sexual intercourse with the victim on the night of 5th of May to the early hours of the 6th of May.

7. Most of the facts leading up to the accused having sexual intercourse with the victim are not disputed.

8. The crown maintains what is in dispute is the lack of consent by the complaint. The victim maintains from the beginning that she did not consent to sexual intercourse with the accused.

9. The crown called the victim who testified that the accused on the night in question assaulted the two boys she was with and pulled her by her t-shirt covered her neck and mouth so she could not cry aloud.

10. The victim testified she was frightened of the accused, she cried and struggled and she did not want to go with him. The accused dragged her to the bush where he forced her to the ground, and attempted 5 times to insert his penis into her vagina. The victim struggled and he succeeded after about 5 attempts.

11. The victim reported the matter to the Kakabona Police Post on Monday 8th of May 2006, some 2 days later as the post was closed on the Saturday and Sunday.

12. The crown witness Fredrick Saki and Rodney Taraha testified that they were punched and kicked by the accused so they could let go of the victim who was holding on to her and that she was afraid and crying and did not want to go with the accused.

13. The crown testified that the victim came to the Police post on Monday 8th of May to report that the accused raped her. The witnesses further testified that she was crying and looked frightened and it took time to calm her down so she could tell her story.

Defence Case

14. The gist of the defence case is that sexual intercourse occurred with the consent of the complaint therefore he has a defence to the charge.

15. The defence submit that there was consent by the complainant and the evidence by the prosecution witnesses was concoted by the complainant and the witnesses, and the totality of the evidence must be considered by the court.

16. The defence ask the court to consider the evidence of Fredrick and Rodney who never explained in court or in their statement given to police why the accused assaulted them. All they said was the victim was holding onto both of their shirts so the accused assaulted them.

17. The defence ask the court to consider the length of time the accused and the complaint spent together from about 11:00pm on the Friday night to 3:30 Saturday morning, when the victim stated she arrived home approximately 4:00am which is not at all consistent with rape.

18. Counsel argue that the undisputed evidence is that they were dropped off at LDA main road at about 11.00pm, and it follows that a few minutes spent during the struggle with the two boy, allowed, what happened to the rest of the time. The crown has failed to disprove the timing here.

Issue of Consent

19. The court is of the view that the critical issue for determination is the issue of whether as clear from the victims evidence, she did not consent to the sexual intercourse with the accused.

20. The clear evidence is that after the accused led the victim away from where the alleged assault against the two boys took place at approximately 11:00 to11:30pm. The victim and the accused thereafter spent a considerable time in the area where the rape allegedly took place.

Period of Time Factor

21. The court is of the opinion that given no evidence was led to prove that the victim was not tied up, or held by force that she was not able to escape from the accused. Yet it seems to me they spent approximately 3-4 hours in the area which is clearly not consistent with rape and the victim’s evidence.

22. The victim claim that when they reached the area where the offence took place, the accused removed her clothes, stripped naked and tried to insert his penis about 5 times, then raped her and left her at the scene. This clearly would not have taken more than 20 to 30 minutes.

23. The accused in his evidence stated they walked towards the area, they got there and told Stories, they had foreplay for about 30 minutes before sexual intercourse took place and then they took time, told more stories before they return to the village. This seem to tie in with the time factor of 3 – 4 hours, and the time in which the victim testified she arrived home at 4.00am.

24. The court is mindful of the important principle of law that in considering the uncorroborated evidence of the victim it must warn itself of the danger of convicting the accused on an uncorroborated evidence of the complainant. In R-v- Wilson Iroi([1]) The Court said

"On the question of corroboration, I warn myself of the danger of convicting the accused on the uncorroborated evidence of the complainant. It has been a well settled rule that has the force of law that in cases of sexual nature it is dangerous to convict on the testimony of a complainant alone. However, if after considering this warning most carefully the court is completely sure that the complainant is telling the truth, it may convict on the evidence of the complainant alone"

CONSENT Maybe Reluctant

25. The court is of the view that the period spent in the bush is critical to the defence case. The victim was in the company of the accused and during this period may have had sexual intercourse with him albeit reluctantly grudgingly or even hesitantly "but may have consciously permitted the intercourse" given the long period of time together in that isolated place. ([2]) The court adopt the principle of law enunciated in the case of Holman-v-The Queen, Jackson CJ said at Pg 6,

"A womans consent to intercourse may be hesitant, reluctant, grudgingly or tearful, but if she consciously permits if (providing her permission is not by force, threats, fear or fraud) it is not rape"

26. The court is of the prove that consent being a state of mind to be proved as negatived after a careful review of the behaviour of the complainant, and after carefully reviewing the behaviour of the complainant is satisfied that she may have consented to the sexual intercourse. In ([3]) R-v- Donovan Lord Hewart CJ said,

"[C]onsent, being a state of mind, is to be proved or negatived only after a full and careful review of the behaviour of the person who is alleged to have consented. Unless a jury is satisfied beyond reasonable doubt that the conduct of the person has been such that, viewed as a whole, it shews that she did not consent, the prisoner is entitled to be acquitted."

Burden of Proof

27. The crown bears the heavy burden of proving beyond reasonable doubt that the accused had sexual intercourse with the victim without her consent and that responsibility remains with the crown at all time. If there is any doubt created the crowns case then the accused must be given the benefit of the doubt. ([4]) Denning J in the case of Miller-v-Miller of Pensons said,

"It need not reach certainty, but it must carry a nigh degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man, as to leave only a remote possibility in favour which can be dismissed with the sentence "of course it is possible, but not in the least probable", The case is proved beyond reasonable doubt, but nothing short of that will suffice".

28. The court is of the view that the crown has not prove its case beyond reasonable doubt that the victim given the considerable period of time in which she spent with the accused in that isolated place, consciously permitted the sexual intercourse to take place and the accused must be given the benefit of the doubt.

29. The court in all circumstances find the accused not guilty and acquit him of the charge or Rape.

Alternative Count

30. The court however in considering the alternative count take into consideration the provision of Section 166 of the Criminal Procedures Code. "when a person is charged with rape and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections 141(1), 142, 143, 145 and 163 of the Penal Code, he may be convicted of that offence although he was not charged with it"

Refer Regina-v-([5]) Nickson, where Faukona J said "Section 166 provides that the offence of defilement is an automatic alternative for the charge of rape".

31. The court in considering the alternative charge has taken into consideration the evidence of the crown in Exhibit 3 which clearly reveal the complainant’s date of birth. The complainant is clearly above the age of 13 years and below the age of 15 years. The court having further considered that consent in the offence of defilement under the provision of Section 143 (1) is not a defence.

32. The court in all circumstances find the accused guilty of the offence of Defilement, under the provision of Section 143 (1) of the Penal code, and convict him of the charge.

I will now hear any submission in mitigation.

THE COURT

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^[1] Unreported Crim Case No. 17 of 1991
^[2] [1970] WAR 2, (CCA)
^[3] (1934) 25 Cr App R 1
^[4] [1947] 2 All ER 372, a 373
^[5] [2008] SBHC, 20