Regina v Supa [2012] SBHC 111; HCSI-CRC 76 of 2011 (23 August 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 76 of 2011

R v Peter SUPA

Date of Hearing: 13, 14, 15 & 16th August 2012
Date of Verdict: 23 August 2012

Ms A Driu& Ms T Walenenea for the Prosecution/Crown
Mr B Ifuto'o; instructed by Mr Ed. Cade for the Defendant

VERDICT
PALLARAS J.

[1] The accused is charged with one count of rape contrary to section 136 of the Penal Code [Cap. 26].

[2] It is alleged that at Green Valley, Honiara he did rape Ms Cindy TREVOR (the Complainant) between midnight on the 26th May 2010 and 1 a.m. on the 27th May 2010.

[3] The Crown opened its case by way of a written opening in which it was stated that they would be calling three witnesses in the prosecution case.

[4] The defence indicated that what was in issue was the question of whether or not the Complainant consented to the sexual intercourse. Identity was not in issue.

[5] I remind myself from the outset that in this criminal trial, as with every other, the burden of proof rests squarely upon the prosecution and the standard to which it must prove its case is beyond reasonable doubt.

[6] There is absolutely no onus on the accused to prove his innocence. There is no onus on him to prove anything at all. If he wishes he can remain totally silent throughout the trial and leave it to the prosecution to see if they can prove their case beyond reasonable doubt.

[7] If I am left with a reasonable doubt as to the guilt of the accused at the end of the case, then the accused is entitled to and will be given the benefit of that doubt by being acquitted. It is only if and when I am satisfied of the guilt of the accused beyond reasonable doubt that I can convict the accused of the offence of rape.

The Prosecution Case:
The Complainant:

[8] The first witness called by the Crown was the Complainant, Ms Cindy Trevor. She is a 24 year old woman who, at the time of the offence was employed as a salesperson for a sheet metal company. At the time, she was living in a rented room in Green Valley together with her eldest sister and her cousin, Tuti Wheatley (PW3).

[9] On the day in question, when she arrived home from work her cousin was home as was a small and young girl who was the daughter of the accused.

[10] Later that night, she and her cousin went out. She testified that at approximately 10 p.m., when they returned home from the outing in a taxi, the two young women decided to buy some betel nut and cigarettes from the stall owned by the accused. She had bought these items from him many times previously. In evidence she said that he was a "kind" man when he spoke to her on the occasions that she would shop in his stall.

[11] It was a wet and dark night and when the two women stood at the window of his stall, the accused invited them to come inside out of the rain. Both women went inside the stall. This was the first time that the Complainant had been inside the stall. They all sat and chatted together. There was no light on and the only illumination came from a small candle that was burning in the stall.

[12] The accused gave the women a beer each and invited them to drink it. The Complainant testified that she had just been discharged from hospital, was not feeling well and did not drink the beer. Their conversation lasted between one to two hours. They talked, smoked cigarettes and chewed betel nuts. At some stage, another young man arrived and was introduced to the women as Eddie. He was said to be the cousin of the accused.

[13] The accused told Eddie to go and buy him some more beer. PW3, decided to take the opportunity to go with him so that she could buy some breakfast food for herself and the Complainant. Eddie and PW3 then left leaving the Complainant alone with the accused.

[14] When they left, the accused went to the window of his stall, made a comment about the rain and then went to the door and locked it with a padlock and a chain. The Complainant upon seeing this said to him that there was no need to lock the door. He replied that he needed to lock the door because his relatives would often come and help themselves to betel nuts and cigarettes on credit.

[15] The accused returned to where the Complainant was sitting and then blew out the candle. The Complainant became alarmed. The accused then forcefully placed his hand over her mouth and told her not to make a sound. The Complainant who was now extremely frightened, attempted to remove his hand from her mouth but he was holding her too tightly.

[16] While holding her mouth, the accused tried to remove the Complainant's shirt. He pulled her up and then kissed her aggressively. At this time, he held an object in his hand which he scraped across the table while threatening to stab the Complainant with a knife if she made any noise. The Complainant thought that she was going to be killed.

[17] The Complainant then says that she was dragged up some steps by the accused into another area of the structure and was pushed down onto a mattress. The accused sat down on top of her, grabbed her violently by the throat and began to choke her with one hand while with the other hand, he tried to open her shirt.

[18] The Complainant testified that she was struggling throughout and tried to fight him off but that she did not have the strength to stop him. He threatened to kill her if she shouted and said that he would hide her body in his house and that no-one would know about it.

[19] Unable to remove the Complainant's shirt, he tried to remove her skirt. Being a tight skirt, he was unable to do so. Instead he lifted the skirt up and forcefully removed the Complainant's underpants. Despite trying to fight him off, the Complainant was unable to stop him. The accused then inserted his finger into the Complainant's vagina.

[20] The accused managed to remove his own lower clothing, force open the Complainant's legs and insert his penis into her vagina. All the while he was still squeezing the Complainant's throat. He tried to get the Complainant to suck his nipples and his penis. She refused to do so while continuing to struggle with him. He kept trying to kiss her and after pushing her shirt up underneath her arms, he sucked the Complainant's breasts.

[21] He kept repeating that if she shouted, he would stab her. He told the Complainant to get on top of him. She refused.

[22] The Complainant then heard a knock on the door. She believed that it was PW3 returning. She then heard PW3 calling out her name. The accused was still having intercourse with the Complainant and, tightening his grip on her neck, he told her not to answer and not to say anything.

[23] The knocking on the door became stronger, the accused gradually released his grip and eventually got off her. The Complainant sat up quickly, hunted around for her underpants but because of the darkness was unable to find them and then ran towards the door. The accused threw the keys at her and said if the others asked for him then she should say that he was asleep.

[24] The Complainant picked up the keys but, in the dark, struggled to unlock the door. PW3 and Eddie helped her by shining a torch through the window onto the door. The Complainant was able to see the lock and unlock the door, at which time the two outside pushed the door open.

[25] The Complainant testified that at this time she was still very frightened and thinking of the threats made by the accused that he knew where she lived, knew where she worked and if she said anything he could come after her and kill her at any time.

[26] When the door opened, the Complainant ran out of the house crying. She had left her slippers behind but wanted to get away and reach her home. As she ran away, it was still raining and the road was muddy. She slipped while running, dirtying her clothes, but got up and kept on going. PW3 who was following the Complainant, could not catch her because she was running so fast.

[27] When she reached home, no-one was in her house. She was shaking and crying. PW3 arrived and asked her why she was crying and shaking and running. The Complainant then immediately said to PW3 that the accused had raped her. PW3 asked how he had raped her to which the Complainant replied that she was threatened by the accused and forced to have sexual intercourse and that he threatened her with a sharp thing which he scraped across the table.

[28] She said that she was dragged into the house, pushed down, that the accused got on top of her and raped her while threatening to stab her if she said anything or cried out. She told PW3 that she had felt a sharp object on her, that the accused had put his penis inside her vagina and that her body was in pain. She said that the accused threatened to come after her if she told anyone.

[29] Because the Complainant was now crying loudly, a woman living upstairs was awakened and came to investigate. Upon hearing from PW3 the reason for the Complainant being upset, the woman and her two daughters helped take the Complainant to a police station to report the offence.

[30] After being taken to the police station, she was taken to Rove police headquarters where she made a statement complaining about the rape. From there she was taken to hospital and was examined by a doctor.

[31] She was wearing the same clothes that she had been wearing earlier that night and did not have her underpants which had been lost during the offence.

[32] Finally she testified that when PW3 and Eddie had left to go to buy beer and some breakfast food, they were gone for between 1-1 ½ hours.

Cross examination:

[33] The approach adopted in cross examination was essentially to put to the Complainant that she had asked the accused to let her in, that at the time the accused was sleeping and her knocking woke him up, that it was she who asked the accused for money for beer and that he gave her $54. All of these propositions were denied by the Complainant.

[34] It was suggested that the Complainant and Tuti Wheatley (PW3) wanted to drink more beer and she told the accused to go to buy more beer. It was said that the accused then left to buy beer, leaving the two women and his young daughter in his store. It was on this excursion that the accused was said to have met up with Eddie who told the accused to go back to his store while he (Eddie) took the money and went to buy more beer. This scenario was rejected by the Complainant.

[35] It was put that Eddie returned with 5 bottles of beer of which he gave one to the Complainant, one to PW3 and that the accused drank the remaining three. It was suggested that the women asked the accused to put on some music but that he did not want to because his young daughter was in the house asleep. This version too was denied.

[36] It was put that when the women had finished their beer, the Complainant asked the accused again for money to buy more beer. The accused then gave her an extra $20. The money was taken by Eddie and, accompanied by PW3, he left to look for more beer. The Complainant insisted that this account was fictitious and maintained that she barely touched her beer because she had recently been discharged from hospital with an illness and was still feeling unwell.

[37] With the two others gone, the accused then asserts that he asked the Complainant to have sex with him and that the Complainant immediately agreed to do so. It was put on his behalf that the two did have sexual intercourse but that it was totally consensual. The Complainant was most passionate in her denial of this account.

[38] The accused, who appeared in court carrying crutches, put it to the Complainant that he required crutches at the time of the alleged offence and that he would not have been able to hold down the Complainant, remove his clothing and some of hers, and grip her by the throat as described by the Complainant.

[39] It was suggested that the accused said to the Complainant that she should feel sorry for him because he was disabled. The Complainant agreed that when she was struggling and resisting the accused, words similar to that alleged were said by the accused.

[40] It was put to the Complainant that she could have screamed out or shouted when being attacked by the accused. She repeated that the accused was gripping her mouth and on occasions her throat very tightly and constantly threatened her with death should she make any sound.

[41] Although the evidence was less than clear, the Complainant seemed to suggest that Eddie and PW3 were out of the house for over an hour and that for most if not all of this time the accused had one or other of his hands around her throat as he was forcing himself upon her. The Complainant said that she told the examining doctor that her throat hurt and that she also told him that the accused had sucked her breasts.

[42] The Complainant agreed that there were no bruises found on her throat but maintained that she had difficulty swallowing food for some time after the incident.

PW2

[43] The second Crown witness was Doctor Jack SIWAINAO. The doctor was the Senior Registrar of the National Referral Hospital, Honiara. He examined the Complainant at 1430 hours on 27th May, 2010.

[44] The Complainant presented to him with swollen eyes, in an upset state with two of the front buttons on her shirt ripped off and another button hole torn open. She was wearing a blue shirt and a black skirt which were stained with mud.

[45] He examined the pelvic region of the Complainant and found her to have abrasions on her external genital area especially at the site of her perineal body which was painful to touch. Laboratory tests taken from a high vaginal swab and from the vaginal opening revealed the presence of spermatozoa at both sites.

[46] His report was tendered by consent as Exhibit P5.

[47] In the doctor's view, examination revealed injuries that were consistent with the description of events that was given to him by the Complainant. The cross examination of the doctor (as too with the Complainant) suggested that had the attack occurred as described by the Complainant, then more injuries would have been apparent.

[48] I have carefully considered the Defence submission in this regard and while there is some common sense attractiveness in the bald assertion that there ought to have been more visible injury, it ultimately depends upon the Court speculating as to how much force would produce visible injury. Even if I accept that one might have expected to see more injuries, their absence is not such as to significantly affect my assessment of the Complainant as an honest, reliable witness who was testifying to events that clearly were, on her account, terrifying and traumatic.

[49] The Complainant testified that she had told the doctor that the accused had sucked her breasts. In cross examination it was put to her that she had said no such thing to the doctor. In producing his report, the doctor described it as a summary of what occurred and stated that it did not purport to contain every word said between him and the Complainant.

[50] He also testified that the fact that there was no obvious injury to the breasts of the Complainant was not decisive of the question of whether the accused had sucked them as alleged. Nor does it rule out the Complainant feeling pain in her breasts as a result of them being sucked by the accused.

PW3

[51] Tuti Wheatley was the third Crown witness (PW3). As to her account of the events leading up to the time that she left the accused's store with Eddie, she corroborated the version given by the Complainant and was not at all shaken in cross examination. When it was put to her that the Complainant asked to be let in, she repeated that the accused had invited them in to take shelter from the rain.

[52] She disagreed with the version put to her that led her to go with Eddie to buy beer. She went along, she said, because she wanted to take advantage of the opportunity to buy some food for breakfast. This was the same account as that given by the Complainant.

[53] When it was suggested that the Complainant drank her beer and wanted more beer to drink, she said that the Complainant hardly touched her beer and then gave the rest to her to finish. PW3 drank a little of the beer and then she in turn gave the remainder to Eddie.

[54] PW3 says that she was with the Complainant in the accused's presence for about 20-25 minutes before Eddie arrived. When Eddie left to buy beer, she went with him to buy food and told the Complainant not to come because of her belief that it was unsafe at that time of night.

[55] PW3 and Eddie walked to a number of shops however they were all closed. Eddie knocked on the door of a house to see if they had any beer but they did not. The two then returned to the accused's store.

[56] When she returned, PW3 noticed that there were no lights coming from the accused's store. She called out for the Complainant and knocked on the door while Eddie called out from the back of the store. No response was heard from inside.

[57] PW3 continued to knock harder on the front door and when Eddie returned he shone a torch in through the front window. PW3 then was able to see inside and saw the Complainant's slippers. Believing the Complainant to be still inside she knocked harder on the front door while Eddie knocked at the back.

[58] PW3 then heard footsteps and heard someone unlocking the front door. Eddie shone the torch inside and PW3 saw the Complainant inside and crying. When the front door opened, the Complainant rushed out of the house and ran off without speaking to her or to Eddie at all.

[59] PW3 ran after her and was calling out to her but she could not catch the Complainant who was running too fast. She saw the Complainant slip on a muddy section of the road and later caught up with her at their home. She asked the Complainant what had happened and the Complainant, still crying, said "Peter raped me".

[60] The Complainant told PW3 that the accused threatened her and that if she told anyone what had happened he would come after her and stab her because he knew where she lived and knew where she worked. PW3 described the Complainant as "looking like someone who had just seen a devil".

[61] The Complainant told PW3 how the accused locked the door and blew out the candle after PW3 and Eddie had left. She said that the accused had a knife which he scraped against the refrigerator and said to the Complainant that he would kill her with the knife if she told anyone what had happened. The Complainant said that the accused pulled her up the low set of stairs, pushed her down, took off his clothes, squeezed her mouth very tightly, grabbed her breasts, pushed her legs apart and penetrated her with his penis.

[62] The Complainant told her that she was in a lot of pain but had no other way but to struggle while remaining quiet. She told her that she heard the knocking and the voices outside.

[63] PW3 then covered the Complainant with a coat and with others in the house, took her to the Police Station. From there they went to Rove Station and then onto the hospital.

[64] PW3 identified the accused in Exhibit P1 and the clothing that she was wearing on that night.

Cross Examination:

[65] In cross examination PW3 agreed that she had heard no noise of struggle or crying coming from inside the store. She said that she had not consumed any other alcohol that evening prior to going to the accused's store and that she and the Complainant were invited in by the accused because it was raining at the time.

[66] She did not recall either the Complainant or herself asking that music be played and music was not played that night. Neither woman asked for any money from the accused, indeed it was he who invited them to take cigarettes and pay later.

[67] She denied that the accused gave them $54 and further denied that it was the accused who went to buy beer saying that he remained in the store the whole time. She denied the suggestion that the Complainant finished her beer and also denied that she wanted to drink more beer. The Complainant did not tell her to go with Eddie to buy beer.

[68] She conceded that not only was she related to the Complainant but that they were also the best of friends. When it was put to her that she would do what the Complainant told her to do, she replied that if it was appropriate and if it was the right and correct thing to do, then she would.

[69] She said that she never saw the accused using crutches on any occasion that night.

The Defence Case:
The Accused:

[70] Mr Ifuto'o for the accused announced that he had explained to his client his rights under section 269 of the Criminal Procedure Code (Cap. 7) and that the accused elected to give evidence on oath but would be calling no other evidence.

[71] The accused then testified that on the night of 26th May, 2010, he was home asleep with his young daughter. Between midnight and 1 a.m. of the 27th May, he was awoken by the Complainant and PW3 knocking on the window of his store. He said that the Complainant called out that she wanted to buy cigarettes and when he came to the window she passed $5 through to him.

[72] He testified that the Complainant then asked him to open the door so that she could come inside. He opened the door and the Complainant and PW3 came in and asked him to put on some music. After initially refusing, he agreed to do so. He said that he noticed that they were both drinking and that they then asked him for money to buy more beer.

[73] They asked him if he wanted to drink and he replied "if you are going to buy it". They then asked to borrow money from him and he gave them $54, however he was told by the Complainant to get the beer and he agreed to go.

[74] On his way to buy beer he met Eddie Ramo who asked him where he was going. When the accused told him, Ramo told the accused to go back to his store and that he would buy the beer and deliver it to him. When he arrived back at his store, he knocked on the door and the women opened the door for him to come in.

[75] He said that the three of them then sat and listened to music and chatted. After a while Eddie Ramo arrived with five beers. The accused gave one beer each to the Complainant and PW3 while he drank the other three. Eddie did not drink any beer. On the accused's version, when these beers were finished the Complainant still wanted more beer and asked to borrow more money. He then gave her an additional $20. The Complainant is then alleged to have told PW3 and Eddie to leave and buy some more beer and the two of them then left. They were going to try to buy beer from a house suggested by Eddie.

[76] When they left, the accused testified that he asked the Complainant to have sex with him. She replied "we are gangs". I note here that in her evidence in cross examination the Complainant said that when the accused first grabbed her she said to him "what are you doing, we're friends". I therefore take the accused's evidence that the Complainant said "we are gangs" to be essentially to the same effect, that is, that the Complainant at some time said at least those words.

[77] The accused then said to the Complainant that she should feel sorry for him or have pity on him because he was disabled. It seems that on his version, this was sufficient for the Complainant to consent to having sex with the accused. He blew out the candle, went up to the bed and was followed by the Complainant. He told her to lift his child off the bed and lay her on the floor. While she did that he lay on the bed and took off his clothes.

[78] The Complainant is then alleged to have said that she would only take off her pants and not her skirt or shirt. The accused said that he wasn't happy with that and that he "wanted all her clothes off". The Complainant then apparently agreed and removed all of her clothing so that she was completely naked. The accused said that the Complainant was engaging in sexual intercourse aggressively with him and that he had to tell her not to rush because his leg was hurting.

[79] It was the accused's testimony that from the time PW3 and Eddie left on the second occasion to buy more beer, that is when they went to ask at the house, the two were away for about 1½ hours. When the two returned after this length of time, he said that they had not finished having sex. He heard the knocking on the door and the calling of voices but he continued to have sex for a further five minutes or so.

[80] When they had finished having sex, the accused says that the Complainant got up, got dressed and said to him that "you can keep my pants and I'll come back tomorrow evening", presumably to collect them. The Complainant then took the key to the front door and went to unlock it. As she was leaving, the accused said to her that if the others asked for him she was to say that he was resting.

[81] However, the accused then said that he put on his trousers, followed the Complainant to the door and said to PW3 and Eddie to come inside but they both declined. The Complainant had left. The next morning he was awakened by members of the Complainant's family kicking in his front door.

[82] The accused said that in 2010 he was still using two crutches and that he at no stage ever threatened the Complainant, used any violence against her, used no force and did nothing that she did consent to.

[83] The cross examination consisted of putting the Complainant's version to the accused. He maintained the version that he had given in evidence in chief.

[84] In response to questions from the Court, the accused said that 26th May, 2010 was not the first time that the Complainant had been inside his store. He claimed that she was a regular visitor and had often come to bring him food. The previous occasion that she had visited was on the Saturday before the 26th of May which was a Wednesday.

[85] He also said that at no time during that night was the Complainant ever crying or upset. He also did not know how the buttons and button hole on the Complainant's shirt had been ripped.

Re-Opening of the Crown Case:

[86] Given the potential importance of the evidence of Eddie Ramo, I asked the prosecutor why he had not been called given that he was listed on the Information as a Crown witness. I was told that as his evidence was not helpful to the Crown case a decision had been made not to call him but to leave it for the defence to call him if they so decided.

[87] Defence counsel indicated that they had in fact asked that Ramo be made available for cross examination but that they were not aware that he had attended court earlier in the trial.

[88] There is no doubt that the explanation offered by the Crown prosecutor could never suffice as a reason for not calling Ramo. The Crown's very function is to present all relevant evidence to the Court whether it assists the Crown case or not and it is a serious failure in the Crown's duty not to do so.

[89] However, I am also mindful that in opening the prosecutor announced which witnesses would be called and did not nominate Ramo. No objection was then made by the defence. Furthermore, the defence made no application at the close of the Crown case for the witness to be presented for cross examination. It is difficult to understand why this was not done.

[90] Overall I am satisfied that the Crown's failure to call the witness arose out of inexperience and poor communication between both sides rather than an attempt to conceal potentially relevant material from the Court.

[91] At my invitation the Crown applied to re-open its case to enable it to call Ramo. This was done with the consent of the Defence. I was satisfied that such a course was required in the interest of justice, the application was granted and Ramo was called by the Crown.

PW4

[92] Eddie Ramo was called as the fourth Crown witness (PW4). After identifying the witness the Crown tendered him for cross examination. As explained above, the Crown initially took the view that PW4 ought not to be called as part of the Crown case. While the Defence raised no objection before me that he was not called, it was submitted for the accused that the witness could give evidence that would assist the defence case. They indicated that they wanted him called.

[93] In a sense, while called as part of the re-opened Crown case, he was called to assist the Defence case. When PW4 testified that he was a friend of the accused, that he had known him since they both were children and that they had grown up together in the same village, I was concerned as to the possibility of partiality or bias in the evidence that PW4 was to give. This concern was highlighted when cross examination began with the witness apparently giving no evidence from his own recollection or using words of his own, but simply agreeing to a series of propositions put to him by Defence counsel.

[94] In my judgment, the interests of justice were not being served by the evidence being elicited in this fashion. I indicated to Defence counsel that if his cross examination continued in this way then there may come a time when I would not permit questioning in such a leading fashion. The cross examination continued on in the manner in which it had begun.

[95] When questioned by the Court, PW4 testified that he had his own distinct recollection of the events of the night of the alleged offence and at that point I considered that the interests of justice would best be served by the witness being allowed to testify from his recollection rather than by simply being asked to agree to propositions being put to him by counsel. In the event, he largely confirmed the version given by the accused as to how the two men came to meet and how he had purchased beer for the accused after being told by him that there were two girls at the accused's store.

[96] In his evidence PW4 confirmed that on the night in question he had seen the accused with a walking stick, on his way to buy beer. He asked the accused where he was going and when told, said to the accused that he should return to his store and that he would buy the beer and bring it to him.

[97] This contradicted the accounts given by the Complainant and PW3 who said that the accused already had the beer and that PW4 had arrived later.

[98] However, PW4's evidence not only supported aspects of the accused's case but was capable of supporting aspects of the version put by the Complainant and PW3. The Complainant testified that when she was freed by the accused, she went to the door, unlocked it and ran out upset and in fear leaving behind her as she did her slippers and underpants. She testified that she said nothing to her best friend (PW3) or to PW4 but simply ran away as fast as she could to get home.

[99] PW4 said that when the door to the accused's store was opened, the Complainant immediately rushed out before he was even able to enter himself, that she looked frightened and that she ran off quickly without saying a word to him or to PW3. I found this to be a significant feature of his evidence.

[100] He also supported the evidence of the Complainant and PW3 who testified that PW3 went with him because she wanted to buy some food for the morning and that PW3 told the Complainant to stay in the store while she went to the shop. The accused's account was different. He said that it was the Complainant who told PW3 to go with PW4 so that they could buy more beer suggesting that it was the Complainant who was sending the others away.

Verdict

[101] I am correctly reminded by Defence that this is not a case where I should decide according to which version I prefer. Even if I were to prefer the evidence of the Crown the accused would be entitled to be acquitted. For the judgement to be made is not which is the preferable version. It is and only is, whether the Crown has proven its case so that I am satisfied beyond reasonable doubt of the guilt of the accused.

[102] In a case involving word against word, it is extremely important to be aware of the danger of convicting the accused without supporting evidence from an independent source as to the matters in dispute. I need not be as cautious if I am satisfied beyond reasonable doubt that the Complainant is telling the truth. However where I am doubtful about the truth of the Complainant's evidence the accused is entitled to the benefit of that doubt, particularly where there is no corroborative evidence relating to the sexual intercourse and the absence of consent.

[103] I am in no such quandary here. The Complainant gave her evidence well and presented as a very sensible, mature and above all honest witness. It is to her great credit that she had the charity to describe the accused as "a kind man" when he spoke to her during her shopping visits. I was impressed by the witness who testified with balance and credibility.

[104] I have no hesitation in finding her to be a witness of truth and one upon whom reliance can readily be placed. That is not to say that I am able to find that her description of every event was totally accurate. For example, her account of when PW4 came onto the scene, although supported closely as it is by the evidence of PW3, is not an account that I can be certain about. The evidence of the accused and of PW4 on this issue has caused me to have sufficient reservation as to which description is factually correct and chronologically accurate.

[105] However, I do not find that this discrepancy is of sufficient significance so as to critically affect her credibility or reliability on what was the principal issue in the case, whether or not sexual intercourse was consensual. On that issue I accept her evidence as truthful and as establishing the element of lack of consent.

[106] The evidence of

• the state of her torn clothing,
• her panic when running from the accused's house – attested to by PW3 and PW4,
• her state of distress when she arrived home,
• her immediate complaints of being raped by the accused and
• the medical findings,
  

all has a consistency about it which assists me in assessing the Complainant as a reliable witness.

[107] while the complaint evidence cannot assist the Crown in establishing the fact of intercourse or lack of consent, it can assist when assessing the credit and the consistency of the Complainant's conduct. It is admissible evidence which goes to the consistency of the Complainant's behaviour and not as evidence of the facts about which complaint has been made.

[108] In this case there is classic evidence of what is termed "recent complaint". As soon as she removed herself from the presence of the accused and was safely home, she immediately complained to PW3 in terms consistent with her testimony. She then made similar complaints to the police and to a doctor. It is evidence which in my view supports my assessment of her as a witness.

[109] As I have indicated, I find that there is other material before me which supports the Complainant's evidence. First, there is the physical evidence of torn clothing which is consistent with the violent assault described by the Complainant but inconsistent with the version described by the accused. It is most notable that there was no cross examination of the Complainant as to how her clothing came to be torn and no alternative explanation was ever suggested to her in cross examination.

[110] Next is the evidence of PW3 who in large measure, corroborated the Complainant's version of the lead up to the assault and disputed the version put to her by the accused. There was one particular aspect of her evidence which I found to be particularly noteworthy. She was asked why she stopped the Complainant from accompanying her and Eddie when she left the store. The inference was that if she really was concerned that it was dangerous to go out then she would not have ventured out onto the street herself.

[111] She replied that it was an unsafe time and place for the Complainant to be on the street. When asked why that didn't apply to her also, she told the court that she was quite confident in her own capacities because she was proficient in martial arts. While the evidence itself has little probative value on the ultimate issue, it came unexpectedly as a result of cross examination and buttressed my assessment of her as an honest witness.

[112] I have already mentioned that the evidence of PW4, while supporting the accused in one respect, corroborates the evidence of the Complainant and PW3 on the vital point of the Complainant's state and manner of leaving the accused's store.

[113] The accused gave evidence that the Complainant when leaving, said to him words to the effect that "you can keep my pants here, I'll come back tomorrow". The Complainant's version was that in the total darkness that existed in the accused's store and in her panic to get away from the accused, she made a quick sweep of her hand to try to find her pants, but when she couldn't, decided to just leave them.

[114] I find the accused's account on this issue to be quite fanciful. If sex was consensual and the Complainant took her time to dress herself from, on the accused's version, a state of total nakedness, it is hard to see why the Complainant would not have fully dressed herself before leaving. But more significantly, it is again very noteworthy that this version was never put to the Complainant and consequently she was never given the opportunity to respond to it. The accused's evidence on this issue had all the hallmarks of invention.

[115] The accused also gave evidence that the Complainant had visited him many times before and had even made a practice of bringing him food to share. The Complainant on the other hand, testified that she had been to his shop before but described the reason for going as only to buy cigarettes and other items. She said that she had not previously been inside the store.

[116] Evidence of the relationship that exists between the protagonist and the antagonist in an alleged rape is important evidence that assists in understanding the full scenario and the context within which events occur or are alleged to have occurred. When the Complainant was cross examined, at no stage was it suggested to her that she had visited the accused on several occasions previous to the night of the alleged rape. It was never put to her that she was in the habit of visiting him and bringing him food and then sharing a meal with him.

[117] I cannot conceive of any counsel who was so instructed, in the circumstances of this case, not putting her relationship with the accused to the Complainant. It would strengthen the submission that she was present throughout of her own free will, that a bond of friendship or perhaps romantic attachment had developed during these visits and thus assist in the inference being drawn that intercourse was consensual or at least assist in the creation of a reasonable doubt that it was.

[118] No questions suggesting that this sort of relationship existed were put nor was it ever suggested that she had been a regular social visitor- as opposed to a customer for cigarettes – at the accused's store. The only evidence of this came belatedly from the accused and my assessment of it, as with his evidence relating to the Complainant's pants, was that it was an invention.

The Law:

[119] Under section 136 of the Penal Code [Cap. 26], the Crown needs to prove beyond reasonable doubt that at the time and placed alleged it was

1. the accused, who had
2. sexual intercourse with the Complainant

100. without her consent
     

[120] Neither the identity of the accused nor the fact of sexual intercourse occurring was in issue. The only issue was whether when the accused had sexual intercourse with the Complainant it was with or without her consent.

[121] Having accepted the Complainant as a witness of truth, I accept and so find that the accused threatened the life of the Complainant if she cried out or complained, that he at one stage threatened her with a knife, that despite his handicap he physically overpowered the Complainant who presented as a small woman, and that he removed as much of her clothing as he was able to do in the struggle that enabled him to effect his purpose.

[122] Further, I find as the only reasonable inference open on the evidence, that the Complainant's shirt and buttons were torn in the struggle between her and the accused. I also find that the Complainant fled the accused's store in panic and fear as soon as he freed her and threw the keys of the door to her and that she made complaint against the accused virtually immediately.

[123] As the Defence have rightly conceded, the Complainant's evidence if accepted is sufficient to establish the offence of rape. I do accept her evidence and I am satisfied that upon all of the evidence in the case that the Crown has satisfied me beyond reasonable doubt of the guilt of the accused. The accused is convicted of one count of rape.

THE COURT