Regina v Gua [2012] SBHC 126; HCSI-CRC 195 of 2011 (12 November 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS

(APANIAI, J)

Criminal Jurisdiction

REGINA -v- MACBERTH GUA

Dates of Hearing: 24^th to 27^th September and 8^th to 10^th and 15^th October and 1^st November 2012.
Date of Judgment: 12^th November 2012.

Mr. Naigulevu for the Crown.

Mr. Allan Hou for the accused.

JUDGMENT

Introduction.

1. The accused, Macberth Gua, is charged with one count of rape upon Agastar Tafuselo (“complainant”) on 31^st March 2009. The incident occurred in a palm oil plantation at the Foxwood area, North Guadalcanal.
   
2. At the close of the Crown case, the accused submitted that he had no case to answer. However, on the 8^th October 2012, I ruled that he had a case to answer.
   
3. After having been advised of the three options available to him, namely, that he was entitled either to remain silent or to make a statement from the dock or to give evidence on oath, the accused elected to give evidence on oath.
   
4. In his evidence, the accused did not dispute that sexual intercourse occurred in a palm oil plantation at the Foxwood area as alleged. His case is that the complainant had consented fully to the act of sexual intercourse. Hence, the only dispute in this case is in regards to the question whether or not the complainant had consented to the act of sexual intercourse with the accused.
   
5. I must therefore remind myself that the burden is on the Crown to prove beyond reasonable doubt that there was no consent on the part of the complainant to the act of sexual intercourse.
   
6. I have also considered whether I am obliged by law to follow the long standing practices of requiring corroboration in sexual cases and the need for judges to warn themselves of the danger of convicting an accused on the uncorroborated evidence of a complainant.
   
7. Counsel for the Crown submits that these practices have now been abrogated by the Evidence Act 2009 and are no longer mandatory. He urged me not follow these practices in this case. He has cited a number of cases in other common law jurisdiction in support of his submission^[1].
   
8. However, counsel for the accused has submitted that these practices still apply and I must give myself those warnings before I could convict.
   
9. I agree that the practice of requiring corroboration in sexual cases has been abrogated by section 7 of the Evidence Act 2009. However, in my view, section 7 does not prohibit the court from requiring corroboration in appropriate cases. It is clear from the wordings of section 18 of the Act that whether or not corroboration is necessary is a matter for the discretion of the court.
   
10. The same applies in regards to the question of issuing cautions in trials for sexual offences. Section 19 of the Act makes it clear that whether or not a caution should be given is a matter for the discretion of the court having regard to the circumstances of the case. Of course if the complainant has lied in her evidence or has been found on a previous occasion to have falsely made a similar accusation or has given very unreliable evidence, I see no reason why the court should not require corroboration or give itself an appropriate warning.
    
11. It follows therefore that the previous mandatory rules regarding corroboration in sexual cases and the necessity for a judge warn himself or herself of the need for such corroboration before he or she can convict are no longer obligatory but are matters which are for the discretion of the judge having regard to the circumstances of each case. The Evidence Act, while abrogating those rules, did not prohibit the court from invoking the rules in appropriate cases.
    
12. Having said that I now turn to the evidence in this case.
    

The evidence:

13. The events leading up to the sexual encounter at the oil palm plantation at Foxwood can be stated as follows.
    
14. At around lunch time on Friday 31^st March 2009, the complainant was returning from Poma store and was on her way back to ITA Hardware where she worked.
    
15. She had been to Poma store to buy kitchen utensils for her and her new partner, Benedict Dai (“Dai”) (PW4).
    
16. The complainant was at that time, and still is, the legal wife of the accused but had deserted the accused on or about 20^th March 2009 and has been living with Dai in a de facto relationship since then.
    
17. As she came to LKP Hardware shop, which is about midway between Poma store and ITA Hardware, the accused came in a taxi and stopped near her. He then approached her and told her to get into his taxi. She refused.
    
18. According to the complainant, the accused, in an attempt to lure her into the taxi, had lied to her saying that their two children were in the back of the taxi. She said she did not see the children in the taxi and refused to enter the taxi. As a result, the accused forced her into the taxi and a struggle then ensued which resulted in her shirt been torn.
    
19. The accused admitted that a struggle occurred between him and the complainant and that the complainant’s shirt was torn but denied that he told her that the children were in the taxi. His account was that he told her their children were at the house and wanted to see her.
    
20. On this point, I am satisfied that the accused told the complainant that their children were in the taxi. I am satisfied that he wanted to get the complainant into the taxi and in order to convince her to go into the taxi, he had to invent the story about the children being in the taxi.
    
21. The complainant’s evidence is that she did not want to go into the taxi but the accused pulled her and pushed her into the taxi. She said the accused even slapped her in the face as he tried to push her into the taxi. She also said that another person came and helped the accused push her into the taxi. She also said that as a result of the struggle, her blouse got torn.
    
22. The accused confirmed that the complainant had refused to go into the taxi and that an argument arose between them. He also admitted that she struggled as he pulled her into the taxi. He further admitted that as a result of the struggle, the complainant’s blouse got torn. This is confirmation of the complainant’s version of what happened in front of LKP. I am satisfied that the complainant did not want to go with the accused when the accused approached her at the LKP Hardware and that she was forced into the taxi by the accused.
    
23. Having forced the complainant into the taxi, the accused then drove all the way to Foxwood and into the oil palm plantation.
    
24. I note that the reason put forward by the accused as to why he wanted the complainant to get into the taxi was for her to go and see their 2 children who were crying for her ever since she left them. However, having succeeded in getting her into the taxi, he did not drive the complainant to Naha to see the children. Instead, he drove her to the oil palm plantation at Foxwood.
    
25. The complainant said that during the whole trip to Foxwood she remained quiet while the accused was doing all the talking. She said he talked hard at her and said he would kill her. She became fearful and afraid so she just remained silent.
    
26. In his evidence, the accused confirmed that the complainant did not want to talk as they drove to Foxwood. He said as he drove he tried to convince the complainant to return to him and the children but the complainant did not want to talk. He said however that in the end, the complainant agreed to come back to him and the children but said that she was afraid that the accused might assault her for leaving them. He said that he assured her that he would not harm her if she returned. The complainant however denied that she agreed to come back to him and the children.
    
27. I do not believe that the complainant had agreed or promised to come back to the accused as alleged. In any event, any such agreement or promise, if made by the complainant, would have probably been made out of her fear of the accused rather from her own free will.
    
28. The complainant then said that as they came to the oil palm plantation at Foxwood, the accused turned towards the sea and stopped at an isolated spot in the plantation away from the main road.
    
29. This was confirmed by the accused in his evidence. He said that he stopped about 15 to 20 meters from the main road.
    
30. The complainant said that when they stopped, the accused said to her that this would be her last day to see her “good” boyfriend then he took hold of the utensils that she bought at Poma store and broke them.
    
31. At that time, the complainant was holding the plates with her while seated in the front seat of the taxi. She said he was very angry so she became very frightened of him. She said she opened the door to run away, but he came and slapped her and kicked her right leg. She said he talked hard at her and broke her shirt. She said she also tore his shirt as they struggled. He then squeezed her neck so hard that she could not breathe and then asked whether she would come back to him. She said he then made her swear to God that she would come back to him. She said she swore to God she would return to him. It was then that he released his grip on her neck. She said she was frightened he might kill her.
    
32. For his part, the accused said that when they came and stopped in the plantation, he asked her about the plates. She said they belonged to some people. He got angry and took the plates from her and broke them. This is consistent with the complainant’s evidence who said he broke the plates.
    
33. The complainant said that after he broke the plates, he told her to go to the back seat. She refused. She said she knew what was on his mind, that is, to have sexual intercourse with her.
    
34. He talked hard at her and pushed her into the back seat. He did that by pulling onto one side of her shirt and pushing her into the back seat in between the driver’s seat and the front passenger seat. She said she became fearful for her life and was shaking. She went to the back seat and sat in the back seat right behind the front passenger seat.
    
35. He then got up from the driver’s seat and came to her in the back seat coming through in between the driver’s seat and the front passenger seat. He unzipped his trousers and commanded the complainant to suck his penis. He held the back of her head and pushed her head towards his penis. The complainant did not resist fearing that if she did she would be harmed.
    
36. He then told the complainant to take off her clothes. She refused. The accused became aggressive and undressed the complainant himself by unzipping her trousers and spreading her legs apart. He then inserted his penis into her vagina. She did not resist fearful that she might be hurt if she did.
    
37. She said after he ejaculated, he wiped both her and himself with her torn shirt and then threw the shirt away.
    
38. She said that the sexual intercourse happened before they met an old man along the road and when they met the old man the accused gave him the remaining utensils.
    
39. In his evidence, the accused did not challenge the complainant’s evidence in regards to the oral sex and the vaginal sex. He also agreed that he assisted the complainant in removing her trousers.
    
40. However, his evidence was that the oral sex and the vaginal sex were consensual and that no force was involved. In regards to the oral sex, he said that during their marriage, that was what she normally wanted them to do as foreplay to sexual intercourse. In regards to the vaginal sex, he said it was the complainant herself who got hold of his penis and pushed it into her vagina. He said after having sex, he wiped both of them clean and then she went and sat at the front passenger seat while he went to the driver’s seat.
    
41. He agreed that after having sex, they then drove back to Honiara. He claimed that on the way they told stories and that it was their intention to go and see the children at Naha. He agreed that they met and old man along the road but said they met him before they had sexual intercourse.
    
42. The accused further said that they drove all the way to the house of the complainant’s sister at Kukum where the sister welcomed them and said it was good that they had come back together again. He said the complainant then asked him to go and fetch her clothes, which were in the family basket at Naha. He went and brought the clothes however, on arrival he found that the complainant had gone.
    
43. The complainant’s evidence as to what happened after the sexual intercourse was that after wiping both of them with her shirt and throwing the shirt away, he told her to go and sit at the front passenger seat. He then asked her whether she was going to go back to him. She replied saying she would go back to him. She said she told him that because she feared that if she said “no” he might hurt her.
    
44. She said they drove back to town and went to her sister’s house at Kukum. That was around 3pm. There she went to the laundry where she washed her legs, face and hands. She said she had scratches on her legs, hands, face and chest. She said her nieces Nadia Sikilabu (PW2) (“Nadia”) and Annie Kole (PW3) (“Annie”) were in the laundry area at that time doing their laundry.
    
45. She said her nieces saw her and asked what happened and she told them that the accused had taken her to a plantation and did “something” to her. She said she did not tell them directly that he had sex with her because of customary taboos of saying it in a direct manner.
    
46. Nadia confirmed seeing bruises around the complainant’s neck. She said the bruises were black marks. She said the complainant was crying or had tears in her eyes when she came to the laundry area. She said she asked the complainant what happened and the complainant told her the accused assaulted her. She said the complainant then asked her if she could use her mobile phone and gave her some money to buy breeze card for the phone. She bought the card and then gave her mobile to the complainant to make a call. After making the call, the complainant left.
    
47. Annie had also given evidence that the complainant came to the laundry in the afternoon of 31^st March 2009 to wash her face. At that time, she and Nadia were washing clothes in the laundry area. She said she saw bruises or scratches on the complainant’s face, neck and lips. She also saw tears in her eyes and that she looked frightened. She said the complainant had told them that the accused had assaulted her and wanted to kill her at an oil palm plantation. She also saw that the complainant’s shirt was torn. She said the complainant wanted to make a phone call using Nadia’s mobile phone. She did not know who the complainant had called. She said after making the call, the complainant went into the house with Nadia and after that she left.
    
48. Dr. John Taniamae (PW5) had examined the complainant at 9pm on 31^st March 2009. Apart from confirming that sexual intercourse had taken place on that day, his evidence also confirmed that there were scratches on the complainant’s body.
    

Findings:

49. From the evidence given in this case, it is clear that there was no plan by the complainant to go out with the accused that day. In fact she did not want to go into the taxi and that she got in only because she was forced to do so by the accused.
    
50. It is also clear that the accused had wanted to trick the complainant to get into the taxi by lying to her that their children were in the taxi when there were no children in the taxi.
    
51. The accused had also lied to the complainant that their children were at Naha and that the children would very much like to see her. If the children had truly wanted to see the complainant and if that was the reason why the accused wanted the complainant to get into the taxi, the accused should have driven the car to Naha so that the children could see their mother. He did not. Instead he drove all the way to Foxwood. There he had sexual intercourse with the complainant. Clearly, the accused already had a plan in mind when he forced the complainant into the taxi. That plan was to have sexual intercourse with the complainant whether she liked it or not.
    
52. He claimed that the complainant had concurred in having sexual intercourse with him. Unfortunately, I am not convinced that that was so. The circumstances in which the sexual intercourse occurred, the struggles that occurred, the tearing of shirts, the scratches and the escape of the complainant when they arrived at Kukum, do not favour the conclusion that the complainant had consented to the sexual intercourse with the accused nor do they favour the accused’s assertions that the complainant had agreed to return to him.
    
53. I am therefore satisfied beyond reasonable doubt that the complainant did not consent to sexual intercourse with the accused at Foxwood in the afternoon of 31^st March 2009.
    

Verdict:

54. Accordingly, I find the accused guilty of rape as charged.
    

THE COURT

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^[1] The Queen v Rennie Gilbert [2002] UKPC 17 (21 March 2002); Longman v R [1989] HCA 60; Balelala v State [2004] FJCA 49.