Regina v Freeman - Verdict [2012] SBHC 147; HCSI-CRC196 of 2011 (14 November 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC. No. 196 of 2011

REGINA

V

FREEMAN

Hearing Dates: October 24,25,26
Verdict Delivered: 14 November 2012

Coram: Pallaras, J.
Crown: Mr. Kelesi
Defence: Mr. Fugui

Verdict –

(Pallaras J)

[1] The Crown opened its case on the basis that the accused picked up the Complainant in his taxi, refused to take her to the destination nominated by her and refused to let her out of his taxi until after he had raped her on three occasions. On the opening address, it was a case of abduction and three counts of rape.

[2] The Information before me alleged one count of rape only.

[3] When asked which act of intercourse was the subject of the charged count, the prosecutor did not say. When asked on what basis the uncharged acts were said to be admissible in evidence in relation to the single count, no suggestion of "guilty passion" or evidence going to the relationship between the parties was relied upon.

[4] The prosecutor agreed that although there were separate acts of intercourse, only one count would be proceeded with because – "They are separate but they are in the car and that's why."[1]

[5] After further discussion and consideration, the Crown belatedly sought leave to withdraw the Information and file a new Information containing three counts of rape. After being reassured that the evidence against the accused was not in any way different and after some time to consult with the accused, the Defence consented to proceed on the new Information.

[6] I allowed the Crown's application, arraigned the accused on the new Information and accepted his not guilty pleas to each of the three counts of rape.

[7] It is a pity that an obvious lack of thought and preparation of the evidence to be led by the Crown resulted in this false start and a significantly more serious group of charges than the single count included in the original Information confronted the Defence.

[8] Having entered pleas of not guilty to each count of course put the onus on the Crown to prove its case beyond reasonable doubt. The accused bears no onus to prove his innocence or indeed anything else. Each count must be proven separately to the same standard, beyond reasonable doubt and if it is only if this is done with any or each of the charges can I convict the accused on any or all of the counts. If a reasonable doubt exists in relation to the proof of any one of the counts, then the accused is to be given the benefit of that doubt by being acquitted of it. It is not a generosity, it is his legal right.

[9] At the conclusion of the Crown opening, the Defence helpfully confirmed that the issue was principally one of consent although it was the Defence position that only one act of intercourse took place.

Summary of the Evidence:

PW1 – Anna ROPONITAWA ("the Complainant"):

[10] The Complainant testified that she was married, although single at the time of the alleged offences. She was unable to tell me or even estimate her age although I judged her to be in her late teens to early twenties. She'd had no schooling and was unable to read or write, tell the time or estimate distances. She worked as a house girl.

[11] She said that in the afternoon (at a time which she guessed to be around 4:30 pm – 5:00 pm), she hailed a taxi being driven by the accused. The day was Saturday 13 November, 2011. She had been waiting for a taxi with her girl friend who left her when she had boarded the taxi. She boarded the taxi at Rove and wanted to head east to the Town Council. From there she had intended to take a bus to her auntie's house at Tuvaruhu. She testified that it was getting dark because of the heavy rain and clouds at the time.

[12] At some time during that journey, the accused asked her if she wanted to go for a ride and held out a can of beer to her, pressing her to drink. She testified that refused both offers although after being continually pressed by the accused, she eventually took and held the can in her hand but did not drink from it.

[13] At one stage the accused offered her $100. The Complainant refused the money and did not say that there was any comment by the accused that preceded this offer. Despite the poor weather, she said that the accused was speeding in the taxi. His conduct and his comments to her had alarmed her and she was further alarmed by the smell of beer on the breath of the accused, leading her to believe that he had been drinking before she had boarded the taxi.

[14] When the accused failed to stop at the Town Council she told him to stop at the hospital. She was later to say to the police that she had an uncle in hospital that she would visit. She later admitted that she had no uncle in the hospital and didn't know what reason to give the police as to why she had nominated the hospital. The defence rely on this admission as demonstrating that she was not a witness who could be believed. An alternative view is that she was an unsophisticated young woman who had been traumatised and panicked into making up what she thought needed to be explained.

[15] She testified that the accused increased his speed as he went past the hospital and that she was now fearful of him and of what he was going to do. She had thought of trying to jump from the car but was unable to because of its speed. The accused continued on until he came to Henderson field near the airport when he pulled into that area and stopped his car.

[16] The Complainant then says that he told her to undress and that when she refused he threatened to hit her. She became more frightened of him and while initially resisting his attempts to remove her trousers, after being threatened again she did not resist him as he undressed her.

[17] She says that she tried to open the door but that it did not open and so she began to wind down the window to try to open the door from the outside door handle. When she did this she says that the accused threatened her not to continue and then unscrewed and removed the locking knob from the door of the car.

[18] He then proceeded to undress himself and after moving the front passenger chair back, got on top of the Complainant and raped her. She testified that on two further occasions he penetrated her vagina with his penis while in the taxi. On the third occasion, he ejaculated and then permitted her to dress herself.

[19] The Complainant then said, somewhat surprisingly, that the accused started the taxi and began to drive back before dressing himself. After going only a short distance, he stopped the car and dressed himself while outside the car. This was highlighted by the Defence as an obvious lie in that it was too improbable to be believed. An alternative view of the evidence is that the accused, who was said by the Complainant to be drunk when he picked her up in Rove, was simply demonstrating his level of intoxication. It is also quite difficult to imagine what possible reason the Complainant might have for concocting such an unlikely scenario.

[20] On their way back from Henderson airport, the Complainant told the accused to let her off at Chinatown. The accused refused saying that they were going to Rifle Range first so that he could deliver the takings to the taxi owner. On the way there, the accused stopped at Baha'i to buy beer. He did not get out of the car however as he was served by someone who came to the car window.

[21] On arrival at Rifle Range, the accused did not take her to the taxi owner's house, but stopped at a canteen nearby and told her to get out and wait for him there. When she got out he refused to let her take her bag with her, telling her that she might have told him lies and might run away from him. I find it significant that the accused did not wish the owner to see the Complainant in the taxi and did not wish to have to explain her presence to him. I also find it significant that he tried to keep control over her and her whereabouts by retaining her bag which contained all of her money. She was virtually abandoned with no money, no phone and knowing no-one in the vicinity. She was yelling at the accused to give her back her bag but he just drove away.

[22] When she got out of the taxi she was crying and severely upset. This was corroborated by several prosecution witnesses although denied by the accused. The married couple who owned the canteen saw and heard the commotion outside their canteen. Both of them in turn approached the Complainant to see if they could help her.

[23] The Complainant said that she was feeling unwell and was unfamiliar with the place where she had been left by the accused. She said that she was recalling the things that had happened to her, was emotional and was crying. She told the woman from the canteen that "the taxi took me"[2].

[24] She was to use a similar expression later in her evidence when she related that she told the owner of the taxi that

".... It was my first time that a taxi took me in a wrong way".

[25] She later explained that

"what I meant when I said that the taxi took me in a wrong way is because the taxi took me and he had sexual intercourse with me, that was the first time."[3]

[26] She asked a passing young man if he could retrieve her bag from the taxi for her. Although the accused had driven away, she could still see where the taxi was when she sought help from the passer-by.

[27] Around this time, the owner of the taxi, who was not at home when the accused stopped by, arrived on the scene. He spoke to the Complainant in what appears to be a fairly aggressive and unsympathetic manner. He accused her of lying and of being drunk.

[28] In this regard it is significant than even although the two owners of the canteen had been very close to the Complainant while speaking to her, when asked if they could smell any alcohol on her, they both said "no". Indeed when the taxi owner (PW6 Junior RADI) was asked the same question he also had to agree that he did not smell any alcohol on the breath of the Complainant although he maintained that he could tell by the way that the Complainant was walking that she had been drinking.

[29] He was asked

Q. And could you describe from your observation how she walked?

A. She was crying and then stood up and she walked over to another place and then from there she walked over to another place.[4]

[30] He was later asked[5]

Q. Was she upset at the time?

A. Yes.

Q. And crying?

A. Yes.

Q. Could that have anything to deal (do) with why you find (found) it difficult to understand her?

A. What do you mean?

Q. Could that have contributed to you having difficulty understanding her, the fact that she was upset and crying?

A. Must be like that.

[31] In short, there was no support for the accused's contention, later to be repeated in his evidence, that the Complainant had been drinking, much less that she was drunk.

[32] The Complainant then testified that another person, who was said to be a local Chief, came to speak to her. He was later to assist in retrieving the Complainant's bag. She was asked to accompany him to a market stall where the police would be called. When the police arrived, they took her to Police Headquarters at Rove where she told them everything that had happened. Afterwards she was taken to the hospital and medically examined.

[33] In summary, the cross examination of the Complainant consisted of putting the defence case to her. It was put that she had agreed to go on "a drive" with the accused, that she had accepted and drunk a lot of beer, that she had asked him for money, that she had engaged in consensual sex with the accused in his car at the airport and that there had been only one act of intercourse.

[34] It was suggested that she might have escaped or called for help on several occasions and that she might have told any of the people at Rifle Range the details of what had happened to her in the taxi. The reason that she did neither of those things was because she was lying about what happened.

PW2 – Charles LOKUMANA

[35] Mr Lokumana was joint owner with his wife of the canteen at Rifle Range. He saw the Complainant alight from the taxi and said that she was crying, upset and asking the driver for her bag. He said that the Complainant was "really demanding for her bag and she was crying for help".[6] At a later stage he saw the taxi come back to his canteen. The Complainant again insisted that the taxi driver return her bag to her but when she went to look in the taxi the bag had gone. He could smell no alcohol on the Complainant's breath.

PW3 – Christina LOKUMANA

[36] Mrs Lokumana saw the Complainant standing on the road outside her canteen. She was crying and complaining that the taxi driver had stolen her bag. When she went to help, the Complainant appeared frightened and upset and repeated that her bag had been stolen. She smelt no alcohol on the Complainant's breath.

PW4 – Clement KIPO

[37] He saw the Complainant crying as she alighted from the taxi at Rifle Range. He spoke to the Complainant who told him that she wanted to be taken to the hospital by the taxi but that the driver did not turn at the hospital. They went all the way to Henderson before returning. On the way back she told the driver to stop but he continued on.

[38] In cross examination, it was put to the witness that he was lying when he said that he had seen the Complainant crying. He disagreed. This was the first time that the Defence had suggested that the Complainant was not upset at Rifle Range it not having been put to any of the previous witnesses.

PW6 – Junior RADI

[39] He was the owner of the taxi being driven by the accused. He said that the Complainant was crying and that she had "forgotten" her bag in the car. When asked by the Court if the word "forgotten"[7] was used, he said that the Complainant had told him that "her bag was in the car"[8]. He then gave the evidence concerning his opinion that the Complainant had been drinking, reproduced above. He said that when he asked the Complainant whether she had been drinking, her reply was "no".

Statements Tendered By Consent

[40] The statements of Trulin PENELI and Charles TAURIKENI were tendered by consent.

[41] Mr Peneli says that he was asked by the Complainant to get her bag from the taxi. The taxi had driven past him and when it turned to the main road, the Complainant ran off into the bush. He saw the taxi park in front of the canteen and approached the driver to ask whether there was a bag in the taxi belonging to the Complainant. The driver did not reply to the question and simply asked "where is the girl?" Peneli then told the driver that the Complainant had run off into the bush at which stage the driver went off into the bush to look for her.

[42] When the driver left, Peneli looked inside the taxi and seeing the Complainant's bag, removed it from the taxi. He also said that when the Complainant came to him to ask for his help, she looked and sounded very frightened.

[43] Mr Taurikeni's statement added nothing of significance to the evidence.

Record of Interview:

[44] The accused's record of interview was tendered by consent. In it he denied raping the Complainant and said that he had one instance of consensual intercourse with her. He also suggested that it was probably one of the boys at Rifle Range who had raped the Complainant.

The Defence Case:

[45] The accused opted to give sworn evidence and called no other evidence.

Summary of the Accused's Testimony –

[46] The accused said that he was stopped by the Complainant on a fine afternoon and that she got in without saying where she wanted to go. He immediately asked her if she wanted to go for a ride and the Complainant instantly agreed. He asked her if she wanted to drink beer and when she agreed, he told her that they would stop and buy some beer. Further along in the journey, he again asked her if she wanted to go for a ride. Again she agreed.

[47] He said that he stopped at the Bahai Centre, got out of the taxi and purchased beer and cigarettes. The Complainant was happy and seemed pleased that he had bought those items. The Complainant at no time told him where she wanted to go. He decided to take her to Henderson airport so that they could drink the beer there.

[48] The first thing he said to the Complainant was "do you want to have a ride", by which he meant to go somewhere and have a drink with her.[9]

[49] When they got to Henderson, they both drank three cans of beer after which the accused said "what would be next?"[10]. The Complainant then lay back in the car seat and the accused said "lets kiss"[11] to which the Complainant willingly agreed. The Complainant then removed her trousers and underwear and said to the accused "let's have sex".[12]

[50] The two then had consensual intercourse, once, in the car.

[51] He denied at any stage locking the door or removing the locking knob from the door.

[52] He agreed that the journey to Henderson even allowing for heavy traffic and stopping to buy beer, should take little more than 30 minutes. When asked to explain why, if he left Rove at 4:00pm as he said, it took him 90 minutes to get to Henderson, the accused suggested that the reason it took so long was that traffic was heavy and he was driving slowly.[13]

[53] Although it was put to the Complainant that she could have summoned help from passers-by while she was being raped, the accused said that when they were having sex there were no people around and no-one could see them having sex.[14]

[54] On the way back from Henderson, the Complainant asked him for $100. The accused agreed but said he would give it to her after he had visited the taxi owner in Rifle Range and paid him the takings.

[55] When they got to Rifle Range, he dropped off the Complainant at the canteen and drove off to see the taxi owner. He did not see the owner as he was not home. He returned to where he had dropped off the Complainant but she was no longer there. He heard her calling to him to give back her bag. He spoke to some people who told him that the Complainant had gone up the hill with a man. At this stage, the bag was no longer in the taxi.

[56] He said he didn't go up the hill after the Complainant because

"I didn't want to disturb Anna, because she went up the hill with another man from Reef. So I went back in the car, I started the engine and I continued to work on that night."

[57] In cross examination the accused agreed that he did not normally ask young unaccompanied girls who entered his taxi if they wanted to go for a drive. When asked why he asked this of the Complainant he first said

"I asked and she said it was all right and so we ride"[15]. p.21

[58] Then he said

"How I saw Anna when she stopped me and when she came into the car, how I saw her observation was like she wanted to have a ride."[16]

[59] Then the following exchange took place[17]

Court: "You made up your mind about that when you first saw her did you?"

Accused: "That was how I observed her behaviour when she stopped the car."

Court: "And before you'd even spoken to her you'd made up your mind that she wanted to go for a ride with you?"

Accused: "That's the reason why I asked her if she wanted to have a ride and she said yes."

Court: "So the reason you asked her is because you had decided that she did want to go for a ride?"

Accused: "Yes"

[60] Later the accused elaborated –

"In town you can identified the kind of girl who will want to go for a ride and you can also identify the kind of girl who would refuse to go for a ride."[18]

[61] In a further explanation of his ability to identify "the kind of girl who will want to go for a ride", the accused said[19]

Court: "You are not answering my question. I am not asking you what Anna did, I am asking you to tell me, explain to me how you can tell whether any girl wants to go for a drive with you or not, how do you tell?"

Accused: "Brave girl, the way she talks, she would be talking in a manner like as in a girl that knows how to ask a man for things. That's why I know that a girl like that would ask for a ride."

Court: "All right, you didn't you know whether or not she was brave because you never knew her before that did you and you didn't know the way she talks because you had made up your mind before she even spoke to you. So how did you decide that Anna was a sort of girl that wanted to go for a drive with you?"

Accused: "No, I just know because I stopped for her and then I asked her if she wanted to go for a ride and she said yes."

Court: "Mr Freeman, I am starting to think that you are being deliberately evasive. Now you told me that you had made up your mind about this girl as soon as you saw her. So that before she got into the cab or certainly before she spoke to you, so how did you decide that she was a girl who would want to go for a drive with you in those circumstances? Do you understand what I am asking you? Did you understand?"

Accused: "I understand but I did not know how to explain it in English."

Court: "Well don't use English, use Pidgin."

Accused: "It because of her appearance, I recognised her appearance so that's why I stopped."

Court: "The way she dressed?"

Accused: "The way she spoke and the way she asked for a ride - I asked her if she wanted to go for a ride and she said yes."

Court: "That was after she spoke to you, wasn't it?"

Accused: "I don't know how else to explain it."

Court: "You have made your decision before she spoke to you, that's what you told me before. And all I want to know is how did you come to that decision?"

Accused: "Oh yes because I made that decision because I stopped and I asked her."

[62] In his evidence in cross examination contrary to his evidence in chief, the accused said that the reason he didn't give the Complainant the $100 when he got to Rifle Range was because

"I thought that I when after I arrived at Rifle Range and then I would give it to her when I dropped her off at where she lives."[20]

[63] Then he said,

"Why I did not give her the $100 is because she went off with another man, that's why I did not give her that $100"

[64] When it was then put to him that the Complainant was with him in his car for at least two hours affording him ample time to give her the money, he said

"That's why I did not give it to her was because when we got to that place, I came to look for her – I called out to her but she did not come so that I could give that $100 to her." [21]

[65] He was then questioned about why he did not permit the Complainant to remain in the car while he saw the taxi owner.[22]

Q. "My question is Mr Freeman, why did you have to leave the girl at the canteen at the side of the road at the canteen if she was still under your care?"

A. "I left her there because I was going to go to the boss' house and then I was going to come back and pick her up."

Q. "Why didn't she just sit in the car and the both of you go up to the boss' house and leave the money there then you – why didn't you do that instead of telling her to drop at the front of the..."

JUDGE: "Why didn't she sit in the car waiting for you? That's too long."

A. "Because I was going to be about three to five minutes at the boss' house so that is why I told her to wait in front of the canteen."

Q. "The question that Counsel is asking you 'why didn't you let her sit in the car' answer the question."

A. "Because I going to drive to the boss' house."

Q. "So what?"

A. "In case the bosses would think that I was taking girls around in the car so that's why I leave her there."

Q. "Well wasn't that what you were doing?"

A. "Sorry? And the girl said it was also for her own safety that she was going to get off there."

Q. "She said?"

A. "Yes."

Q. "What did she say?"

A. "She dropped off – got off at the canteen and then I went up to the boss' house."

Q. "What did she say?"

A. "I am going to get off here and I am going to wait for you here. I said you are going to get off and wait for me here and then she said, yes for my safety I am going to wait for you here."

Q. "For her safety, she was going to stand on the street in a place where you just dropped her off while you drove away, is that your evidence?"

A. "The area was safe, it was at the front of the canteen and there were not a lot of people there."

[66] This was an obvious contradiction and invention by the accused in that it had never been the Defence case that the Complainant herself asked to be let out of the car. Indeed the contrary was true. It had been put to her that she had ample opportunity to free herself during the time she was with the accused but chose not to.

[67] Further, as can be seen from the above extract, the accused himself said that he wanted the girl out of the car because he didn't want his boss to know that he might be accompanying young girls around in the taxi when he should have been working.

[68] Finally, it was never put to the Complainant that she had said to the accused that "for her safety" she should wait outside the canteen.

Verdict:

[69] I have watched and listened to the Complainant and the accused very carefully. I am acutely conscious of the dangers of convicting an accused in cases that are essentially word against word and I am aware that I have to scrutinise the Complainant's evidence with particular care before deciding to act on it.

[70] I have included more passages of transcript than perhaps is usual to demonstrate why I assess the accused to be a totally unreliable and untruthful witness. His evidence was, to put it charitably, totally improbable. It was based on a view of his abilities to identify "the kind of girl who will want to go for a ride", views which simultaneously succeed in being offensive, sexist, degrading, arrogant, outmoded and bordering on misogynistic.

[71] He clearly justified his actions on the basis that the Complainant was the "type" of girl who deserved and wanted him to pick her up, wanted him to keep her a virtual prisoner in his taxi and wanted him to treat her in that degrading fashion. While there are still men who are mired in this antiquated view of women, no females young or old are safe.

[72] His evidence was evasive, contradictory, and delivered with an arrogance and obvious disdain for the Complainant. He was not an impressive witness.

[73] Even should I reject the entirety of the accused's evidence, which I say to avoid any uncertainty, that I do, this does not avail the Crown. They still need to satisfy me on the evidence that they have established the elements of each offence beyond a reasonable doubt before they can be said to have discharged their burden of proof.

[74] There were elements of the Complainant's evidence that were difficult. She at times became angry and answered aggressively and shortly. Her evidence that the accused dressed himself outside the taxi while it was stopped on the main road was counter intuitive. Her admission that she told a lie to the police when she said that her uncle was in hospital was concerning. All of these matters have to be weighed in the balance when assessing her honesty, reliability and credibility.

[75] I have come to the view that despite the matters that I have highlighted, I am able to accept her evidence beyond a reasonable doubt as truthful and reliable. She has explained why she said what she did to the police and as mentioned earlier, the accused's drunkenness may explain his behaviour while he was dressing himself. I find her explanations on these issues to be reasonable.

[76] I am aided in this assessment by the evidence of the other Crown witnesses who describe her state at Rifle Range in a way which I find to be consistent with her version of events and completely inconsistent with the version offered by the accused.

[77] On her version, she had been kept against her will, threatened, seriously abused, abandoned in an unfamiliar place and had been deprived of her possessions. On the accused's version she had been a happy participant in drinking and sexual intercourse and had absolutely no cause to be even troubled, far less for there to be any reason for her to be distressed in the way that she was seen to be by several independent witnesses.

[78] She was taken to Rove Police Headquarters on the very night of the rape and testified, with very little challenge, that she had complained to the police that she had been raped by the accused. It is a total mystery to the Court why the prosecution did not call this evidence of recent complaint. It was said by the prosecutor to be "an oversight". That does a great disservice to the Complainant who is entitled to expect better and is a damning admission indeed.

[79] As a result, I cannot and do not rely on any evidence of complaint in my assessment of the evidence. I have come to the views concerning the honesty, credibility and reliability of the witnesses solely for the reasons that I have outlined above.

[80] These findings must result in the conviction of the accused on three counts of rape. I make the following orders in respect of the 3 counts on the Information.

ORDER:

Count 1 – Guilty

Count 2 – Guilty

Count 3 - Guilty

THE COURT

---

^[1] Transcript, day 1, p.3
^[2] Transcript, day 1, p.59
^[3] Transcript, day 2, p.23
^[4] Transcript, day 2, p.88
^[5] Transcript, day 2, pp. 88-9
^[6] Transcript, day 2, p.36
^[7] Transcript, day 2, p.86
^[8] Ibid
^[9] Transcript, day 3, p.8
^[10] Ibid
^[11] Ibid
^[12] Ibid
^[13] Transcript, day 3, p.11
^[14] Transcript, day 3, p.14,15
^[15] Transcript, day 3, p.21
^[16] Transcript, day 3, p.22
^[17] Ibid
^[18] Transcript, day 3, p.24
^[19] Transcript, day 3, p.39
^[20] Transcript, day 3, p.36
^[21] Transcript, day 3, p.36-7
^[22] Transcript, day 3, p.41-2