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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)
CRC NO. 9 OF 2009
REGINA
–V-
THOMAS KWAINA BELO
Date of Hearing: 2,3 and 6 August 2012
Date of Decision: 8 August 2012
Ms R Olutimayin& Ms M Suifa'asia for the Prosecution/Crown
Mr S Valenitabua & Mr M Holara for the Defendant
VERDICT
PALLARAS J:
[1] The accused Thomas Kwaina Belo ("the accused") is charged that on the 29th of July 2008 at Vura 3 in Honiara, he did rape Regina Ologwalo ("the complainant") contrary to Section 136 of the Penal Code. At the time of the alleged offence the complainant was 15 years of age and had significant physical and psychological handicaps.
[2] The accused has pleaded not guilty to the charge. He is said to be "somewhere between 50-60 years of age".
The Crown Case:
[3] The Crown called ten witnesses in their case – seven gave viva voce evidence and the statements of three other witnesses were tendered by consent.
PW1
[4] The first Crown witness was Dr. Paul ORATALOA ("PW1"). He is a consultant psychiatrist who, since 2007 has held the position of National Head of Mental Health Services in Solomon Islands. He was accepted as an expert witness by the Defence.
[5] PW1 testified that he examined the Complainant on the instructions of the Director of Public Prosecutions on 23rd September 2011. The purpose of the examination was to discover whether the Complainant was mentally competent to give evidence on oath.
[6] He concluded that the Complainant was competent.
[7] As a result of his examination of her he opined that she was an 18 year old girl who, while capable of understanding simple, basic instructions or conversation, was unable to respond to anything more complex. He noted that her speech was slurred and at times difficult to understand without the assistance of the Complainant's mother who was present during the interview. He assessed her as having a reduced intellectual capacity and although capable of functioning adequately within her home, would have difficulty in coping outside of her home.
[8] He found that she was capable of recalling events from both her short term and longer term memory. He testified that she was taking anti-epileptic medication and that the stress accompanying her giving evidence in court may trigger a fit.
[9] I interpose at this stage to note that the Complainant's mother was later to give evidence that because of her daughter's illness with meningitis from a very young age she had never attended school.
[10] The Complainant presented as a young girl with significant physical and psychological problems who spoke in a manner that was difficult for the court interpreters to understand without clarifying the answers given by her.
[11] Neither the doctor's qualifications nor his evidence was challenged by the Defence.
PW2
[12] The second Crown witness was a police forensic photographer by the name of George DIUDI ("PW2"). He produced a set of three photographs of the home of the Complainant which he had taken on 6th of August 2008 and which were later tendered by consent as Exhibit P1.
[13] In cross examination he testified that he saw no blood on the mat where the Complainant was said to be laying during the alleged rape.
Vulnerable Witness Application
[14] An application was made by the Crown under the vulnerable witness provisions of section 41 of the Evidence Act 2009, for the Complainant to give her evidence with the assistance of a support person. The application was opposed by the Defence. I ruled under section 41(3) of the Evidence Act 2009, that the Complainant could have the assistance of a support person.
PW3
[15] The support person was Madam Lorrie Sisiolo ("PW3") who was the General Secretary of the National Council of Women. In her role at the Family Support Centre she assisted the Sexual Assault Unit of the Solomon Islands Police Force and was present with the Complainant when she was interviewed on 5th August 2008.
[16] She testified that during the interview, the Complainant was able to relate her story to the police without any assistance from anyone and that since that date she had not seen the Complainant again.
[17] Her evidence was not challenged by the Defence.
PW4
[18] The fourth Crown witness was the Complainant. She gave her evidence in the company of Madam Sisiolo (PW3). She testified that she lived with her mother, her brother and his wife at Vura 3 Honiara. She testified that she was laying on a mat on the floor in her home when the accused took off her pants, pulled up her shirt and sucked both of her breasts. The accused took off his own trousers, lay on top of her, pushed her legs apart and put his penis into her vagina.
[19] She said that the accused did not ask her if he could do that, that she didn't want to open her legs and that she felt a lot of pain when he was on top of her and when he put his penis in her vagina.
[20] She said that she did not call out when this was happening to her. She said that these events occurred when "Barbara" went to the shop for biscuits. Barbara is the daughter in law of the Complainant's mother and was called as the fifth Crown witness. When Barbara returned the accused was still inside her house. The Complainant said that she told Barbara what happened but "she did not want to listen to me". She said that when her mother returned from work that night, she told her that her breasts and her vagina were very sore and that the accused had caused them to be sore. Her mother then washed her.
[21] She said that the police came to see her to hear her story and that she was taken to a doctor by her mother.
[22] In cross examination the Complainant said that at the time of the incident her grandmother was in the house in her own bedroom. It was put that nothing had happened between her and the accused, a proposition which was denied by her. The Complainant agreed that her mother took her to the hospital on 18th August 2008 for an examination. It was suggested that she was lying about the whole incident, that she hadn't seen the penis of the accused and that nothing at all had happened. The Complainant consistently asserted that the offence did happen.
[23] The Complainant agreed that on the day of the offence she was ill, that her mother bathed and fed her before going to work and that she then rested on a mat on the floor. Oddly, it was suggested that she felt no pain during the incident. This suggestion was denied by the Complainant. It was also suggested that the accused was sitting on a chair reading a book next to where the Complainant was resting on the mat. While the Complainant agreed that this occurred after the incident she remained adamant that the assault occurred.
[24] I was conscious throughout the Complainant's evidence that I would have to accept her both as a truthful and as a reliable witness in order for the Crown to be in a position to prove its case beyond reasonable doubt. I remind myself of the dangers inherent in convicting upon the evidence of essentially one witness particularly in allegations of rape where there is accusation and denial. It is not for the accused to prove that the allegation is false, it is solely for the Crown to prove that it is true.
[25] The standard to which the Crown must prove its case is the highest known to the law, beyond reasonable doubt. Should I find that a reasonable doubt exists as to the guilt of the accused, then he must be given the benefit of that doubt. This means that the Crown will have failed to prove its case beyond reasonable doubt and the accused must be acquitted. It is only if the Crown proves its case to this high standard that the accused may be convicted. The accused carries no onus whatsoever to prove anything – that task starts with the Crown and rests upon them throughout the trial.
[26] In assessing the Complainant as a witness, I was conscious of her personal circumstances and handicaps. She needed extra time to answer questions put to her and often needed the question to be asked more than once before she responded. However when her personal circumstances are taken into account, it is apparent that her evidence was clear and for the most part consistent. There were it is true some inconsistencies in aspects of her evidence as there often are with witnesses who struggle under no handicaps. But her evidence as to the alleged rape was consistent, clear and unambiguous. She was not shaken by cross examination by the Defence. If accepted, her evidence clearly established that she had been raped by the accused.
[27] Having assessed her to be a credible witness, it was of course necessary for me to be satisfied that she was a reliable witness. Many witnesses are capable of giving evidence in a credible way and giving evidence which they genuinely believe to be true without having any indicia of reliability about their testimony to aid a court in its ultimate assessment of them and their evidence.
[28] In this case, the evidence showed that the Complainant had given consistent versions to PW5 and to PW7. Her testimony before
me as to the offence itself was consistent and unshaken. She did not present in any way as a witness who was prone to exaggeration
or one motivated by anything other than a desire to tell her story. She made early complaints to PW5 and to PW7 and while of course
this cannot aid the Crown in the proof of the elements of the offence charged, it is a measure of the consistency of the conduct
of the Complainant herself.
[29] For these reasons and because I had the opportunity to watch her carefully during her extended stay in the witness box, I assess
her to be a truthful and reliable witness.
PW5
[30] Barbara Taliabu, the daughter in law of the Complainant's mother, was the next Crown witness (PW5).
[31] She testified that she was living in the same house as the Complainant and was married to the Complainant's brother. She said that she had a five month old baby and that the Complainant's grandmother also lived in the house.
[32] PW5 said that on 29th July, 2008 she was at home with her baby, the Complainant and the Complainant's grandmother. The grandmother was in her own room at the other end of the house. Sometime in the morning of that day, the accused who was also known as "Fox", came to the house. She had seen him many times before as he had been a regular visitor to the house over the four years that she had lived with the family.
[33] PW5 was in the living room with the Complainant who was ill and resting on a mat. PW5 then heard the accused calling from outside the house. He said that he was taking a ladder to a neighbour's house and when he did that he would return. He then returned to the house and gave PW5 ten dollars telling her to go to the store to buy a loaf of bread. She replied that they had already eaten breakfast but the accused insisted saying that it was for the grandmother who wanted the bread.
[34] PW5 then said to the accused that he should go to the shop but he was adamant that she should go to buy the bread. PW5 then picked up her baby while the accused sat on a chair in the living room where the Complainant was laying on the mat. The accused began to read a book.
[35] When PW5 left to go to the store she described the distance travelled as "a bit far because another three houses before I get to the store".[1] She also said that she was walking quite slowly because she was carrying her young baby with her[2]. When she got to the shop she found that it was closed. She called out to the shop owner who took some time to come downstairs to open the shop. She then did her shopping and walked slowly back home[3].
[36] When she arrived home the accused was seated in the chair, the Complainant was still laying on the mat but had a shocked expression on her face. She gave the accused his change who then gave her $1.50 to buy herself betel nut. The accused then left the house.
[37] When the accused had gone, the Complainant asked PW5 what was the name of the uncle who had just left. PW5 then related the following conversation with the Complainant[4] –
"I'm gonna tell mummy."
Then I said "what are you gonna tell mum?"
Then she said "he lifted up my shirt and sucked my both breasts."
"And, then he unzipped my trousers and he unzipped his trousers then a bit thing came out."
"Then he put it on my vagina and my vagina was very painful."
JUDGE: Madam Interpreter, did she said "on" or "in" or it is the same word?
MS OLUTIMAYIN: Could you please clarify for the Court did she say...
JUDGE: I'm asking Interpreter first, thank you. What was your first translation?
INTERPRETER: "On", my Lord.
JUDGE: Thank you. Yes, Counsel?
MS OLUTIMAYIN: Could you please tell the Court what Regina said, on or in?
He put it inside.
Then he lay down on her belly and was shaking it like this.
She said that it was really painful on her.
When you heard her story, did you do anything?
I told her I said "why didn't you tell me so I could have shouted at him?"
Did she answer that question?
No.
[38] I accepted this evidence as evidence of a complaint of a sexual assault against the accused made immediately after the offence.
[39] When the Complainant's mother came home from work that evening, the Complainant made the same complaint to her mother in the presence of PW5.
[40] In cross examination, PW5's evidence was challenged to the extent that the accused alleged that it was PW5 who had asked him for money to buy food because she was hungry. While the witness denied this, she said that she did not know whether the Complainant had any injuries or was wearing any torn clothing or whether there was blood on the mat.
[41] During his own evidence given later in the trial, the accused twice described PW5 as a liar.
[42] In my assessment having seen and heard her give evidence, PW5 was a very impressive witness. She gave her evidence in a measured, mature fashion that left me in no doubt whatsoever that she was telling the truth. To the extent that the version of events given by PW5 differs from that given by the accused, I unreservedly accept PW5's account.
PW6
[43] Mr John RATU was the sixth Crown witness. He testified that he was a farmer, married to a woman who was the sister of the Complainant's mother. He said that two days after the alleged rape, he spoke with the accused who began to talk about the Complainant. The accused told him that "they were only playing"[5]when speaking about the allegations that had been made against him.
[44] His evidence then was
"He said last night I almost or I nearly committed suicide.
When he said he almost committed suicide that was because the public have become aware that – about what he did to that girl, Regina."[6]
[45] He then testified that in his Lau dialect, "playing" meant having sexual intercourse. I note here that I was not prepared to accept this as evidence of an admission by the accused as there was no agreement between the parties as to the accuracy of this opinion. As the witness was not first qualified by the prosecution as an expert or as an authority in the language before leading this evidence from him, in the face of objection from the Defence I am not prepared to act on that part of PW6's evidence.
[46] In cross examination it was put to PW6 that he was simply lying when he testified about the accused saying that he was playing with Regina. The witness however maintained that he was telling the truth.
[47] The only other cross examination was to the effect that it was suggested that the accused told PW7 that he was unwell. This suggestion was denied by the witness.
[48] PW6 was also an impressive witness for the Crown. An elderly man, he gave his evidence in a dignified, quiet fashion that was striking. The suggestion by the accused that PW6 was lying is a suggestion that I totally reject. I accept PW6 as a reliable witness of truth.
PW7
[49] Mrs Glenda LUI, the mother of the Complainant was the seventh Crown witness. She testified that the Complainant was born on 12th May, 1993 making her 15 years of age at the time of the alleged offence. She said that from the age of eight months her daughter had suffered meningitis and had never been able to attend school. On the 29th July, 2008, her daughter was ill and before leaving for work she asked her daughter in law (PW5) to take care of her while she went to work.
[50] She then testified in the following terms –
"Then I came back to the house that evening and Regina was standing at our front door, then she said 'mum you know what, Kwaina sucked both my breasts'. I was shocked so I slapped her right cheek. Because I was shocked, I just walked around the house aimlessly, I did not know what to do. So the only thing I had in mind was to go to Kwaina's house, then I went out the back door."[7]
[51] When walking past the house of the accused's son, the mother in law of the accused's son – who happened to be the sister of PW7 - saw PW7 and spoke to her. PW7 returned to her own house where she hugged her daughter and apologised to her for having slapped her. She then said
"Then Regina started to tell her story. She said 'mummy, Kwaina took off my shirt, I lay down on the mat and then he zipped my trousers and then he also zipped his trousers, then a big thing came out – his ball, then he pushed it inside my vagina. Then he placed his right hand on my stomach and he was shaking it like this.'
Yes? When Regina told you the story, was anyone else present?
Yes, Barbara was beside Regina when she was telling the story."[8]
[52] After her daughter had told PW7 what had happened, she heard her sister calling out to her from outside the house. She then saw that six members of the accused had come to her house offering compensation of shell money and $200 cash for what it was alleged the accused had done.
[53] In cross examination PW7 said that she had tried to report the matter to the police as she regarded it as very serious. She denied the Defence suggestion that she had asked for compensation. She was walking to the police station when, passing the home of the accused's son, she was told by him not to go to the police. She returned home. She said that she did not check for injuries to the Complainant's private parts because she was in shock.
[54] Upon application by the Defence I granted leave for the Complainant to be re-called for further cross examination. In cross examination defence put to her that she had said to the accused's adopted son that he (the adopted son) had sucked her breasts. This was denied by the Complainant.
Tendered Statements
[55] As part of the crown case, the three statements were tendered by consent. They were the statements of Catherine HOIAU (Exhibit P2), Eileen Rose NALA (Exhibit P3) and the statement of Elizabeth RATU (Exhibit P4). The first two statements related the details of an interview conducted by the police with the accused on 12th August, 2008 during which the allegations were put to the accused and denied by him. Mrs RATU's statement described how when told by her sister (PW7) about what had happened to the Complainant, she reported the matter to the police on 30th July, 2008.
The Defence Case:
[56] The Defence elected to call evidence from the accused and from two other witnesses. Although the accused elected to give evidence this did not mean that he then had any onus upon him to prove his innocence. The onus was and remained on the Crown throughout to prove his guilt beyond reasonable doubt.
[57] However the accused's evidence was liable to be judged and assessed for its truth and accuracy just as any other evidence in the case.
[58] The accused testified that he was doing some work at "Harold's" house when he realised that he needed a ladder. He then went to a house belonging to a neighbour of the Complainant and when he did so saw Barbara Taliabu (PW5). He said that she said that she was hungry and that she asked him for money to buy food. I have already indicated that to the extent that the version given by the accused differed from that given by PW5, I accept PW5's version and reject that given by the accused.
[59] He took the ladder to Harold's house and returned to the Complainant's house. He went to the front door of the house and gave PW5 $10 for food. PW5 then asked him to sit with the Complainant while she went to the shop for food.
[60] He sat in a chair near the Complainant and said that her grandmother was also in the house because she was talking to both him and the Complainant from her bedroom. He said that the Complainant was sick, laying on the mat on the floor and that people from the neighbouring house were looking up at him and the Complainant from the ground – the house being elevated.
[61] He said that the front door and the windows were open but that the door of the main living room that they were in which opened into the kitchen and beyond that to a corridor at the end of which the grandmother's room was located, was closed.
[62] PW5 was away for five minutes during which time he read a book while the Complainant was asleep. Nothing else happened. When PW5 returned she gave him some change and he gave her $1.50 for betel nut.
[63] He said that he looked at his watch when PW7 returned from the shop and that it was 10 a.m. He had not looked at his watch prior to that. He then said that it was 10 a.m. when he returned to the Complainant's house before PW5 went to the shop.
[64] The accused gave some evidence that he had suffered from malaria and high blood pressure. From what I could understand of Defence counsel's explanation it was being suggested that it was because of these medical issues that the accused said to PW6 that he had thought about committing suicide and not out of a consciousness of guilt of what he had done to the Complainant. I find this suggestion absurd. It is noteworthy that the fact that the words were said was never challenged by Defence.
[65] As to the payment of compensation by his family, the accused said that he knew nothing about it and that when he found out about it the next day, he was shocked. He asked his family why they didn't consult him first before paying compensation.[9]
[66] In cross examination the accused said that PW7 was lying when she denied asking him for money. He said that the Complainant was asleep throughout the whole time that he was in her company. He knew that the grandmother stayed in her room, knew that the Complainant's mother went to work each day and knew that the Complainant could do very little to help herself.
[67] I was not impressed by the accused's evidence. In my view it was given in a calculated and contrived way. As one example of this the accused gave evidence that several people from the house next door for no reason whatsoever, were standing and looking at him and the Complainant when he was in the Complainant's house. The accused said this in a manner that seemed to be suggesting that as he was being watched or could have been watched he would not have had the opportunity to commit the offence as alleged.
[68] Despite the unlikelihood of any person outside the house being able to see him laying on the floor as the house was quite elevated above ground level, the evidence itself had an air of contrived convenience and untruthfulness about it.
[69] There was a suggestion in the Defence case that the offence could not have occurred as alleged because when PW5 went to the shop she was away for insufficient time for it to have been committed. This suggestion suffered from two flaws.
[70] First, there was no evidence before the court as to how much time the alleged rape took to be committed.
[71] Second, the clear evidence from PW5 was that –
[72] Further to the issue of timing, the accused said that he referred to his watch during the time that he was at the Complainant's. However his evidence on this was contradictory as to when this occurred.
[73] I do not accept the accused's evidence that the grandmother was speaking to him and Regina from her bedroom. There was a considerable distance from where the accused was in the living room across that room, through a door, across the kitchen, along a corridor to the end where the grandmother's room was located.
[74] Furthermore it was the accused's evidence that the door from the living room through to the kitchen and onward was closed. I find it most unlikely that an elderly sick woman would engage in a shouted conversation with the accused particularly as there is no evidence before me from which I could infer that she knew that he was even in the house. I note here that it was never put to the Complainant that her grandmother was talking to her at this time.
[75] A more compelling reason to question this aspect of the Defence case comes from the accused's own testimony. He testified that from the time that he entered the house until the time that he left, the Complainant was asleep on the mat on the floor. It seems unlikely in those circumstances that the grandmother would be talking to her.
DW2
[76] The Defence then called Mr Ray WASI (DW2). He is the adopted son of the accused and he testified that the Complainant's mother PW7 came to his house on the night of the alleged offence and demanded that his family settle the matter immediately. He said that she asked for compensation and then left. He then spoke to several members of his family and that they agreed to pay compensation of shell money and $200 cash. This was later delivered to PW7 by him together with other family members.
[77] He said that he did not refer the matter to his father because he was just concentrating on resolving the issue and because his father was asleep at 8pm when PW7 made the demand. He also said that it was customary for the compensation to be paid whether or not his family felt that there was any truth in the allegation against his father.
DW3
[78] Mrs Lisa WASI (DW3) was called to testify. She is the wife of DW2. She corroborated her husband's evidence that PW7 had come to her house and had demanded an urgent settlement to the matter. She also testified that it was customary for compensation to be paid when demanded even if it was thought that there was no truth in the allegation being made.
[79] I found the evidence before me relating to the compensation payment contradictory and conflicting. I am not able to say what truly happened in relation to this issue. I certainly do not find that the Crown has proven that the family of the accused went to PW7's house uninvited and offered compensation which had not been asked for. Had I been able to make this finding beyond reasonable doubt, then the evidence may well have supported an inference against the interests of the accused but I make no such finding and I draw no such inference.
[80] However, in relation to the elements of the charge against the accused, I do not find it necessary to come to any specific finding in relation to the issue of compensation.
[81] The Defence then tendered a medical report from a Doctor Moses Ludafo'oa dated 18th August 2008.He examined the Complainant on 31st July 2008 and found no external injuries or injuries to the Complainant's vagina.
[82] This evidence was used to base the extraordinary submission by Defence counsel that in a case of rape where there was only the evidence of the Complainant and no evidence of injury or torn clothing, that it was not legally open to convict an accused of the offence of rape.
[83] The days have hopefully long gone where a woman must be shown to have been subjected to even more violence than the rape itself occasioned before her evidence can be accepted as truthful in court. While the existence of injuries or torn clothing may help to prove an allegation of rape, the absence of that evidence certainly does not disprove it.
[84] In the present case, the Complainant did not allege that the accused had beaten her or that he had torn her clothing and so it is not surprising that there is no evidence of those matters. The Defence's fixation on an absence of blood on the mat upon which the Complainant was laying, seemed, with respect, to miss this aspect of the evidence altogether.
Elements of the Offence
[85] In a charge of rape the Crown must prove that the accused had unlawful sexual intercourse with the Complainant. The Crown must prove actual penetration and that such penetration occurred without the consent of the Complainant.
[86] As I have found the Complainant to be a truthful and reliable witness for the reasons outlined, I am satisfied beyond reasonable doubt that it was the accused who entered her house on the 29th July 2008. I am satisfied beyond reasonable doubt that he had sexual intercourse with her in the sense that he penetrated her vagina with his penis. I am satisfied beyond reasonable doubt that he did this without the Complainant's consent.
Burden and Standard of Proof
[87] I have reminded myself throughout of the dangers of convicting upon the evidence of the Complainant alone. I have reminded myself that the accused bears absolutely no onus to disprove the allegation or to prove his innocence. The accused does not have to prove anything. The prosecution from the beginning to the end of a trial has the onus of proving guilt and it must do so to the criminal standard of beyond reasonable doubt.
[88] After a careful evaluation of the evidence and after having the benefit of seeing the demeanour of the witnesses (particularly the Complainant and the accused) as they gave their evidence, I am satisfied beyond reasonable doubt that the Crown has discharged its onus of proving the case against the accused beyond reasonable doubt.
[89] The accused will be convicted of one count of rape contrary to section 136 of the Penal Code, Cap.26.
THE COURT
[1] Transcript, Day 2, page 11.
[2] Transcript, Day 2, page 12.
[3] Transcript, Day 2, page 12.
[4] Transcript, Day 2, page 15-16.
[5] Transcript, Day 2, page 46.
[6] Transcript, Day 2, page 48.
[7] Transcript, Day 2, page 60.
[8] Transcript, Day 2, page 61.
[9] Transcript, Day 3, page 36.
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