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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)
CRC. No .63 of 2011
REGINA
v
RAFITA
Hearing Dates: October 9, 10, 11
Verdict Delivered: 25 October 2012
Coram: Pallaras, J
Crown: L. Fineanganofo
Defence: M. Horala
Verdict:
(Pallaras J)
[1] Prior to the trial commencing the Crown made three attempts to get their charges in order by filing first one, then a second and finally a third Information. When the third Information was filed and before the trial began the Crown sought leave to amend that too. This inexplicable dithering reflected poorly on the amount of thought that had preceded the presentation of the case at trial and as to precisely what case was sought to be made against the accused. By the time that the Crown eventually and finally determined what its case was to be, the accused faced the following counts –
Count 1 – Indecent Assault of Rita Marie FIONA (Contrary to s.141(1) of the Penal Code).
Count 2 – Indecent Assault of Rita Marie FIONA (Contrary to s.141(1) of the Penal Code).
Count 3 – Indecent Assault of Rita Marie FIONA (Contrary to s.141(1) of the Penal Code).
Count 4 – Attempted Rape of Rita Marie FIONA (Contrary to s.138 of the Penal Code).
Count 5 – Attempted Rape of Rita Marie FIONA (Contrary to s.138 of the Penal Code).
Count 6 – Rape of Rita Marie FIONA (Contrary to s.136 of the Penal Code).
Count 7 – Indecent Assault of Mavis Tania LAIPO (Contrary to s.141(1) of the Penal Code).
[2] The accused pleaded not guilty to each count and as a result of his pleas the onus of proving the cases fell squarely upon the prosecution. The accused bore no onus to prove his innocence or indeed to prove anything at all. The Crown bore the onus of proving each of the counts to my satisfaction beyond reasonable doubt. Each count needed to be proven separately and each to the standard of beyond reasonable doubt and it is only if I was satisfied to that standard in respect of each individual count would the accused be liable to conviction on that count. If a reasonable doubt as to the guilt of the accused remained on any or all of the counts he faced, then he was entitled to the benefit of that doubt by being acquitted.
Defence Objections to Evidence:
[3] During the trial it emerged that the Defence objected to the admissibility of portions of the evidence proposed to be led by the Crown.
[4] This evidence related to –
[5] I indicated that I would rule on the admissibility of the evidence at the end of the trial and, although rulings were made during the trial and it is now obvious to the parties that the evidence was not admitted, I indicate formally that none of the three items of evidence were admitted.
The Crown Case:
[6] Rita Marie FIONA and Mavis Tania LAIPO were the step daughters of the accused. At the time of the offences they were living with the accused, their mother and siblings in East Kolaridge and at Rove Police Married Quarters.
[7] The accused is a serving police officer with over 30 years in the Solomon Islands Police Force who has attained the rank of sergeant.
[8] Count 1 – in 2005 Rita Marie Fiona was 8 years old. She slept in the same room as her mother, younger brother and the accused. Her brother slept on a mattress against the wall, her mother slept next to him and Rita Marie Fiona slept next to her mother – all of them sleeping on the same mattress. The accused slept on a mat which was on the floor next to the mattress. One night, Rita Marie Fiona was awakened by the accused, who had put his hands inside her pants and underpants and was touching her vagina. When this occurred she said nothing but moved closer to her mother on the mattress. She testified that this occurred in the year prior to her attending school.
[9] Count 2 – on a day in 2006 Rita Marie Fiona returned home from school and went into her parents' bedroom to change her clothes. As she was changing, the accused entered the room and forcefully inserted his finger into her vagina. She tried to push his hand away but the accused was far too strong for her. She complained to him that it was painful but the accused said only that this was just "a quick one". He then told Rita Marie Fiona not to tell anyone what had happened and threatened to kill her if she did so.
[10] Count 3 – on another occasion in 2006, the accused followed Rita Marie Fiona into the bedroom and locked the door behind him. He told her to take off her clothes and then laid her down on the bed. After undressing, he proceeded to lick her vagina with his tongue.
[11] Count 4 – on an occasion in 2007, the accused called Rita Marie Fiona to his room and told her to undress. He undressed himself and then produced a condom. He showed Rita Marie Fiona how a condom is placed on a penis and explained that the condom was used when having sex to avoid HIV. He then lay on top of her and began to push his penis against Rita Marie Fiona's vagina. He continued doing so until he ejaculated on top of the young girl's vagina. He then dressed himself and left. Rita Marie Fiona testified that she was too frightened to seek help from anyone about what was happening to her.
[12] Count 5 – a similar incident to Count 4 occurred in 2008. When Rita Marie Fiona refused to undress, the accused himself took off her clothes and undressed himself. As he was pushing his penis against Rita Marie Fiona, her mother's voice was heard outside the room. The accused immediately stopped and told his stepdaughter to hide in the wardrobe. The mother was unable to enter the room because the bedroom door was locked. When the accused unlocked the door and the mother entered the room, Rita Marie Fiona came out of the wardrobe. The mother and daughter then had a conversation.
[13] Count 6 – one evening in 2009 the accused told Rita Marie Fiona that she was to accompany him to the Police Club where they together would do some photocopying. When they arrived the accused told his stepdaughter that she should come with him to an area where there once was an old swimming pool. When she refused, he pulled her by the hand and forced her to go with him to the pool area where, notwithstanding her struggles, he forcefully removed her clothing. He then raped his stepdaughter. She testified that she was in much pain and was crying. After the accused ejaculated, they both got dressed and went to do the photocopying.
[14] Count 7 – on an occasion in 2009 Mavis Tania Laipo, who was then 10 years of age, was studying in her parents' bedroom. The accused entered the room, told his stepdaughter to stand and then while standing behind her, touched her all over her body including on her breasts and vagina. She testified that she was too frightened to call out and the accused warned her against telling anyone what had happened.
Cross Examination:
[15] The cross examination of both girls consisted principally of putting to them that they had made up the allegations. It was put that nothing whatsoever of a sexual nature had ever happened between the accused and his two stepdaughters.
[16] Apart from accusing the girls of lying, it was put that they had been influenced by their grandmother in the making of these allegations who, out of a dislike for the accused, had told her granddaughters when these events were alleged to have occurred.
[17] This was a serious allegation made, not only against the girls, but also against their grandmother. While an allegation of lying against the girls was reasonable given the nature of the defence, the equally if not more serious allegation against the grandmother which I took to be one of conspiracy and/or attempting to pervert the course of justice, was an attack that no counsel, conducting himself ethically and according to the proper dictates of professional conduct, would ever have made without considerable reflection and certainly not without instructions and evidence to support such accusations.
[18] The grandmother, Harriet TAUTU gave evidence for the Crown. As it emerged, she was able to give little relevant, admissible evidence. In cross examination it was expected that the allegations put previously through the children would then be put directly to the grandmother.
[19] However, what was of very significant concern to the Court was that in cross examination, no matters were put to her in relation to the serious accusations that had been made about her through the questioning of the two complainants. No questions at all were asked and no propositions at all were put to justify the attack made on her by counsel's cross examination of earlier witnesses. I regarded this tactic as an abuse of the right to cross examine and one which demonstrated a total ignorance of or an indifference to a proper sense of fairness and ethical conduct.
[20] I would add that when the accused later came to give evidence, he himself made no mention of any allegation of conspiratorial conduct or of any personal vendetta by the grandmother against him. This simply served to highlight the unfairness of the manner in which the defence had been conducted on this issue.
[21] Medical reports from Dr. Jack SIWAINAO indicated that Rita Marie Fiona's hymen was absent while that of Mavis Tania Laipo was present. The girls were examined in December 2010 and the results were consistent with penetration of Rita Marie Fiona and no penetration of Mavis Tania Laipo.
The Defence Case:
[22] The Defence called the accused and no other evidence in their case. The accused had been advised of his rights at the conclusion of the Crown case and had elected to give evidence on oath.
[23] He testified, in effect, that all of the allegations made by both of his stepdaughters were false. No sexual conduct whatsoever had been engaged in and indeed, not even did the conversation about condoms occur. At page 48 of the transcript of the proceedings on 12 October, 2010 the following passage appears –
JUDGE: Did you ever say words to your daughter like, this is what a condom is, this is what is used for this is why we use it. Did you ever say anything like those words on any occasion?
A. That is something that is not proper to say.
Q. So the answer is no?
A. No.
[24] While adamantly and unequivocally denying all of the allegations, the accused was occasionally surprisingly equivocal in his testimony.
[25] When asked by his counsel about the allegation the subject of Count 1, he said -
This is not true I do not know.[1]
[26] He was asked about the allegation the subject of Count 2 and said –
Q. Did you ever say to her that this is just a "quick one"?
A. I can't remember that happen.[2]
[27] At a later stage, his counsel asked
Q. Mr Rafita, yesterday you heard about the evidence of Rita about the apology,
was there any time in 2008 you ever had a conversation with Rita whereby
you apologized to her of having sexual activities?
A. When, what time was that?
Q. 2008.
A. I don't remember anything like that happening and even if it did happen I
can't remember.
JUDGE: I can't remember anything like that happening that even if it did happened
I don't remember. Was that the evidence?
[28] On another occasion, after having denied the suggestion that Rita Marie Fiona had slept in his bedroom, the following appears in the transcript –
JUDGE: It is so that we clear, are you saying that it's possible that she slept there that Rita slept in your room and you may not remember or do you say that she never ever sleep there?
A. I may not remember.
Q. So are you accepting that it's possible that she may have slept there?
A. Yes.
Q. Would you translate to be sure please?
A. Sometimes it would be so.[4]
[29] Counsel for the accused then put a long series of questions in which he itemised each allegation that had been made against the accused by his stepdaughters and sought the accused's response which steadfastly amounted to a complete denial until counsel asked the following questions –
Q. Was there any time in 2009 or any other time you ejaculated on any part of her body?
A. Can you repeat that question?
Q. Was there any time in 2009 or any other time you ejaculated on any part of Rita's body?
A. Yes.
Q. What do you mean by yes?
A. I said yes, because that part is a true story in 2009.
JUDGE: It was put to you, you were been asked whether there was any time in 2009 when you ejaculated on any part of Rita's body. Did you understand that question?
A. Yes, the question mi understandem.
Q. And the answer is?
A. Yes.
Q. So in 2009 are you saying to us that you did, there was an occasion
when you ejaculated on Rita's body?
A.On her body, yes.
Q.On Rita's body?
A. Yes.[5]
[30] He was then further asked by the Court –
JUDGE: Is Rita's evidence apart (about) that incident some evidence that you accept. You accept her evidence about what happened behind the Police Club?
A. That the one behind the Police Club, yes, mi acceptem.
Q. You do. Thank you.[6]
[31] Of course by unreservedly accepting what his stepdaughter, Rita Marie Fiona, had said about the incident at the Police Club, the accused was accepting her description of the events that occurred in which she clearly described how she struggled against the accused who proceeded to rape her. This was a clear admission to the allegations made in Count 6, a count of rape.
[32] Indeed, it was to be put by the defence that this admission was something to be regarded in the accused's favour as showing that he was honest in admitting what he had done.
[33] While I am constantly reminded of and am sensitive to cultural differences particularly when it comes to matters of a sexual nature between men and women, I find it curious and apparently hypocritical that the accused persistently denied speaking with Rita Marie Fiona about condoms and other sexual matters because
"That is something that is not proper to say."[7]
yet, readily accepted the evidence of his stepdaughter in relation to the rape and willingly revealed that he ejaculated over his stepdaughter in the process. He also admitted being sexually attracted to his stepdaughter Rita Marie Fiona from the year 2008. This sexual attraction continued into 2009 as she developed further.
[34] I found his equivocation on key issues to be concerning and suggestive of elusion and disingenuousness. I did not assess him to be a witness who was open and truthful but rather a witness who, even if pressed on a specific time, date and event, would then only give a partial answer.
[35] This may have been the result of mendacity or, as he occasionally conceded, an inability to recall. In any event he was not a witness upon whose evidence I could rely. This of course is not to suggest that he bore any onus in satisfying me of his innocence or indeed of satisfying me of anything else, but having chosen to give sworn evidence and to be cross examined upon it, his evidence stood to be assessed as with the testimony of every other witness against the touchstones of honesty, credibility and reliability. In that regard, I am not satisfied that his evidence met any of those standards.
[36] The Crown case of course depended entirely upon the credibility of the two complainants Rita Marie Fiona and Mavis Tania Laipo. As there is no admissible evidence of recent complaint and no independent corroboration of the allegations that each girl makes against the accused, I am acutely aware that it is necessary to scrutinise their evidence individually and with great care before acting upon either account. They of course do not corroborate each other and I must be satisfied that each count has been similarly proven beyond reasonable doubt before I could convict.
[37] The nature of the evidence also requires me to be aware of the dangers of convicting an accused on the word of the complainant or complainants in a case which is essentially word against word. If I am doubtful about the truth of either complainant's evidence then the accused is entitled to the benefit of that doubt and will be acquitted.
[38] Both complainants gave their evidence in a very quiet, diffident and reserved manner. In assessing their evidence, I keep in mind their very young age, the difficulty that young girls have in speaking of such intimate matters in public and the added stress that the accused is their step-father.
[39] I found that Rita Marie Fiona gave unusually consistent evidence given that her testimony ranged over a period of years and included several separate and distinct offences. While on occasions she hesitated, once the particular occasion about which she was being questioned was clarified for her, she gave consistent and clear evidence throughout.
[40] She was able to cope with the pressure of cross examination and the numerous suggestions put to her that she was lying, in a manner that in no way impacted upon her credibility. I have no hesitation in finding her to be a credible, reliable and honest witness. The fact that the accused sat in court and allowed her to be cross examined to the effect that she was deliberately lying about the incident at the Police Club (Count 6) only to admit later that she was in fact telling the truth all along, simply serves as an added confirmation of my estimation of her.
[41] Mavis Tania Laipo's evidence was much more limited in its scope, referring as it did to only one count of indecent assault. Despite her shy and reticent manner she clearly described the act of indecent assault and was not shaken at all in cross examination.
[42] I am not at all persuaded by the Defence contention that she "gave her evidence in an expressionless manner with a demeanour that conveyed an air of unreality". In my view she testified in a manner that conveyed the appropriate expression for a young girl in the circumstances of testifying in public against her step-father in relation to sexual matters. Also, when pressed about his assertion of "unreality" counsel was entirely unable to elaborate or point to aspects of her evidence which supported that claim.
[43] I find that the evidence of Mavis Tania Laipo was honest, credible and reliable.
[44] I am satisfied that both complainants have testified in a manner that enables me to be sure beyond reasonable doubt that they have told the truth. The inevitable conclusion then is that the accused must be convicted of these offences.
Verdicts:Count 1 - Guilty
Count 2 – Guilty
Count 5 – Guilty
Count 5 – Guilty
Count 6 - Guilty
Count 7 – Guilty
Count 3 – Guilty
Count 4 – Guilty
THE COURT
[1] Transcript 12/10/12, p.25
[2] Ibid, p.26
[3] Ibid, p.32
[4] Ibid, p.37
[5] Ibid, pp.28-29
[6] Ibid, p.30
[7] Ibid, p.48
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