Regina v Piko [2012] SBHC 89; HCSI-CRC 30 of 2011 (14 August 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)

Criminal Jurisdiction

REGINA

-v-

RAYVIN LEOKANA PIKO

Date of hearing: 14th, 15th and 16th May and 3rd August 2012.
Date of Judgment: 14th August 2012.

Ms Fineanganofo and Ms Driu for the Crown.
Mr. Ghemu and Ms McSpedden for the accused.

JUDGMENT

Introduction.

1. The accused, Rayvin Leokana Piko, is charged with one count of rape contrary to section 136 of the Penal Code. The prosecution case is that the accused raped Ms. Suanitha Guatali Pikacha ("complainant") at Bahai Centre, Honiara, on a Friday evening between 1st June and 31st July 2005.
   
2. The accused does not deny the act of sexual intercourse, however, he denies that the complainant did not consent to the sexual intercourse. His case is that the complainant had fully consented to sexual intercourse.
   
3. In the light of the accused's denial of lack of consent, I must remind myself of two important principles of the criminal law. The first is that the burden is on the prosecution to prove each and every element of the offence beyond reasonable doubt. This means that the prosecution must make me sure that the accused is guilty before I can convict him of the offence.
   
4. The second is that, as this is a case of sexual nature, I must warn myself of the danger of convicting the accused unless the testimony of the complainant is supported by evidence from an independent source as to the matters in dispute. As I said in R v Robu Bobei Leong[1], the reasons for this warning is that human experience has shown that girls or women sometimes tell entirely false stories for wrong reasons and sometimes for no reason at all - stories which are easy to fabricate but very difficult to refute.
   
5. Of course, this does not necessarily mean that I cannot convict on the evidence of the complainant alone. If, after giving myself the warning, I am completely sure that the complainant is telling the truth, I may nevertheless convict the accused on the evidence of the complainant alone[2].
   

Issue:

6. The only issue in this case is that of consent, that is, whether or not the complainant had consented to the sexual intercourse with the accused.
   

Witnesses and exhibits.

7. The Prosecution has called two witnesses in support of its case. These are the complainant (PW1) and Ms Nadine Laezama ("Nadine") (PW2).
   
8. The only witness called on behalf of the accused was the accused himself who had opted to give evidence on oath.
   
9. Two statements have also been tendered into evidence by consent. These are a statement by David Kusapa dated 20th May 2009 (Ex. "P1") and a statement by Michael Oluvalamo dated 27th September 2011 (Ex. "P3"). An album (Ex. "P2") consisting of 7 photos (photos 1 to 7) taken of the alleged site of the crime has also been tendered by consent.
   

Facts not disputed.

10. It is not disputed that the complainant is a maternal niece of the accused. The complainant's mother is the daughter of a Helen Paia whose sister, Andy, is the accused's mother. Helen Paia is the grandmother of the complainant and the aunt of the accused. In other words, the complainant's mother and the accused are first cousins. In custom, therefore, the accused and the complainant are very close relatives and they both knew it.
    
11. At the time of the incident, the complainant was living with Helen Paia at Bahai Centre. The accused was also living in the same area. The area is commonly known to the people of Honiara as the Guzo Point and is located at the seaside of the Bahai Centre area. The house where the accused was living was not far from Helen Paia's house.
    
12. The complainant had been staying with Helen Paia in 2005 because she was doing her Form 3 at Honiara High. Her parents were in Papua New Guinea ("PNG") and all her siblings were with her parents. She could not go to PNG because she was attending school at Honiara High.
    

The prosecution evidence.

13. At around 7pm on the day of the incident, the complainant had gone to attend a fundraising and concert at St. Nicholas school. That day was a Friday. She could not remember the exact date but it was sometime in June or July 2005. Her auntie, Lisa Haro, had earlier gone to attend the same concert and the fundraising so she followed her there.
    
14. At around 9 or 10pm, she felt sleepy so she decided to return to Bahai Centre (that is, Guzo Point) taking the road that leads from St. Nicholas school down to a massage clinic and then towards Barack shop where she would then cross the main road to Guzo Point. She was returning by herself.
    
15. On the way she met the accused. The accused was by himself. She said that the accused was drunk and smelled beer at the time and had a can of beer in his hand while another can was in his pocket.
    
16. According to the complainant, the accused then told her to follow him but she refused saying she wanted to go back home. She said the accused then took hold of her hand and they both walked back together. She said she resisted but the accused held onto her wrist and pulled her along.
    
17. They came to St. Nicholas school then followed the road leading to the Bahai Faith church. Again, she said she resisted going along that road and told the accused that she wanted to go back home but the accused held her hand tightly and would not let her go.
    
18. She and the accused then followed the road to the Bahai church and came to a hill where they both sat down. She said she did not want to sit down but the accused pulled her and made her to sit down. He then started touching her breasts. She wanted to run away but could not because he was holding her with both his hands.
    
19. She then scolded him and told him that he was her uncle. The accused however replied saying she would enjoy what he was doing. She said she would report him. He did not bother and instead told her to remove her clothes. She was wearing an under pant and a trousers at that time. She did not remove her clothes so the accused pulled down the trousers and the under pant completely from her left leg. The trousers and the under pant were still on the right leg but down to the level of the knee. He then pushed his penis into her vagina and had sex with her. She tried to push him out but could not. She just cried while he was having sex with her. The sexual act lasted for about 5 minutes.
    
20. After the accused had finished having sex with her, she got up, put her clothes on and ran back to her house and went straight to bed. She did not tell anyone. She said it would be a very big embarrassment to her if people knew that her uncle had had sex with her. She said it is a very bad thing in custom for her uncle to have sex with her. She said people would ridicule her if they knew and she did not want to go through the experience of being ridiculed by people.
    
21. She said the next day, the accused climbed into her room but she escaped from him. She said she did not want to talk to the accused and had not talked to him since the incident.
    
22. She said she did not tell anyone about the incident until 2009. She did not tell even her parents who had then returned from PNG. She said it was too shameful for her to tell anyone.
    
23. She said it was not until 2009 that she told Nadine about the incident. She said in the morning of one Sunday in February 2009, she went to the wharf at Point Cruz to see Western Province students travelling back to their respective schools in the West. She said she wanted to give a letter she had written to her mother to the students returning to the Western Province so they could deliver it to her mother.
    
24. She said after she gave the letter to a student, she came to the bus stop opposite the Honiara Casino at Point Cruz and waited for the bus to go to Ranadi where she worked. Two boys were with her at that time. The accused and his friends then came to her at the bus stop and the accused then said to her that he would not forget what he did to her and he wanted to do it again. She said she felt bad and embarrassed when he said that to her. She said that after he said that to her, he and his friends chased the two boys who were with her away from her. She said she felt bad and rang a girl named Regina. Then she also talked with Nadine. She said Nadine came and talked with her at the ANZ Bank area. It was then that she told Nadine about what the accused did to her in 2005. She then took a bus to Ranadi. She said she reported the matter to the police in that same year, that is, 2009.
    
25. Nadine had also given evidence. She said knew the complainant well as they were close friends since they had been to school together. She said that she went to Point Cruz wharf with Alina and Regina on a Sunday in February 2009 to see Western students going away by ship to their respective schools in the Western Province. While at the wharf, the complainant rang her. She and her two friends then went and met the complainant at the ANZ Bank. The complainant was crying when they came to her. She asked the complainant why she was crying and the complainant told her that the accused had asked her when they would again do what they did last time. She said the complainant then told her about what the accused did to her in 2005.
    

The accused's evidence.

26. The accused had also given evidence on oath. His evidence is that a day before the day of the incident, he had talked with the complainant and had asked her to go out with him. He said the complainant agreed but said that she did not want anyone to know about it. He further said that he had in fact specifically asked to have sex with her and that she said it was ok as long as he kept it secret. They then came up with a plan to meet at Kukum. He said she told him that she would be going to a fundraising at St. Nicholas so they planned to meet at Kukum clinic. He said that their meeting that Friday evening was in accordance with that plan.
    
27. He said they met at the Kukum clinic and then walked up the road to a store at the side of the road then they turned towards the school. He said when they reached the school the fundraising had already ceased so they walked back again. He said there were people on the road so the complainant told them to hide. He said they walked together up a hill. He said he led the way while the complainant followed. On top of the hill, they sat down side by side. Then they kissed and he sucked her breast. Then she asked him to take her clothes off. He took off her trousers and pants from one side of her legs only. Then he licked her vagina and then had sex with her.
    
28. After they had finished having sex, she put on her clothes while he put on his and then they both went to the fence where he helped her climbed over the fence. She then went home while he followed another road and went back to where his friends were.
    

Analysis of the evidence.

29. This is a case where it is the complainant's evidence versus the accused's evidence. Clearly, the credibility of both the complainant and the accused is in issue here and the prosecution must convince me to the required standard that it is the complainant who is telling the truth.
    
30. I have heard the evidence of the complainant and Nadine for the prosecution. Nadine's evidence does nothing more than confirm that the complainant had made a complaint to her about her sexual encounter with the accused in 2005. There is no dispute that the complaint was made in February 2009, which is approximately 3 years and 5 months after the incident. The question has therefore arisen as to whether this is a recent complaint. Clearly, this is not a recent complaint. To amount to a recent complaint, the complaint should have been made at the first reasonable opportunity that presents itself after the commission of the offence[3]. This has not happened in this case.
    
31. As for the complainant's evidence, I must say that a number of factors have given me reason to be cautious about convicting the accused solely on the basis of her evidence.
    
32. First, this is an incident that happened more than 3 years ago and, as stated above, no complaint has been made either to anyone or to the police in connection with the incident until about 3 years and 5 months later. While I accept that, culturally, having sex with a very close relative brings shame to the persons concerned and their families, I am also aware that shame is attributed more to the wrongdoer than to the victim of the wrong doing. The failure to report the incident at the first reasonable opportunity has therefore cast doubt on the credibility of the complainant.
    
33. Secondly, the complainant said that she was returning along the road which leads from St. Nicholas school down to the massage clinic and on to the Barak shop when she met the accused. She then said that the accused grabbed her hands and forced her to follow him. Exhibit "P2" shows that there are residential houses close by. Yet the complainant did not call out for help. Had she done so, I am sure the occupants of those residential houses would have heard her and perhaps come to her assistance. Exhibit "P2" also shows that the place where the alleged rape took place was on top of a hill. A shout for help coming from a hill top would certainly have been heard by all the houses below the hill as shown in photos 3 to 6 of exhibit "P2" and would have attracted curious residents to find out why a girl would be shouting from a dark spot on that hill that night. There is no evidence that the complainant had called out for help. There is no evidence that the accused had threatened her with violence or with any weapon if she refused to have sex with him. There is no evidence that he held her mouth so that she could not shout or call for help when the accused was having sex with her. There is also no evidence that the accused had any weapons on him that night so as to create fear in the mind of the complainant and prevent her from calling out for help. Furthermore, photo 7 shows that a Bahai Faith house was only a few meters away from the spot where the complainant said the accused was raping her so that it was possible the occupants of that Bahai Faith house would have heard her and come to her rescue had she called out for help. She did not do so.
    
34. Thirdly, the complainant said that after the accused had finished having sex with her, she got up, put on her clothes and then ran back to her house and went straight to bed. In contrast, the accused said that after they had finished having sex, the complainant put on her clothes while he put on his and then they both went to the fence where he helped her climbed over the fence before going back to her house. Photos 3 to 6 of Exhibit "P2" show that there is a fence within the vicinity of the area where the alleged rape took place and this gives some credibility to the accused's evidence.
    
35. Fourthly, looking at the photos in exhibit "P2", it would appear that the distance from the massage clinic, where the complainant alleged that she first met the accused that night, and up to St. Nicholas then to the Bahai Faith area and finally to the spot where the alleged offence took place, is quite a long distance and to forcefully lead an unwilling person over such a distance would, in my view, be quite a difficult task. The distance described above is based on the complainant's evidence as to where she met the accused that night. However, the accused's version as to their meeting place that night was different. He said they met at Kukum clinic. This clinic is different from the massage clinic and is close to the Kukum police station. The distance from Kukum clinic to the spot where the alleged rape took place is even longer that the distance from the massage clinic to the spot where the alleged rape took place. To lead an unwilling person by force over such a distance would be quite unbelievable.
    
36. Fifth, there is no medical evidence of any injury or bruises on the complainant's body and no evidence of any damage to the clothes she was wearing that night. There is also no evidence of the complainant having been seen in any distressed condition that night. We are here concerned with determining the state of mind of the complainant in relation to the issue of consent at the time of the alleged offence. The state of mind of a person can never be proved as a fact. It can only be inferred from other facts which are proved and the production of medical evidence of injuries or evidence of torn clothes or evidence of distressed conditions are matters which normally add weight to the evidence of any complainant claiming lack of consent to sexual intercourse. These sorts of evidence are not available in this case and, therefore, in addition to the other 4 factors mentioned above, I am not completely satisfied that I can safely convict the accused upon the complainant's evidence alone.
    
37. The accused had, for his part, given evidence on oath. However, I need not go through his evidence. Suffice to say that I do not completely believe all his evidence. For instance, his assertion that he and the complainant had made plans the previous day to have sex is not credible and I do not believe that such a plan was ever made between him and the complainant.
    
38. But the fact that I do not believe the accused's evidence does not necessarily mean I must accept the complainant's evidence. The burden still lies on the prosecution to prove beyond reasonable doubt that the complainant had not consented to sexual intercourse with the accused and, in this case, I am not satisfied to the required standard that there was lack of consent on the part of the complainant.
    

Verdict:

39. Accordingly, I find the accused not guilty and he is acquitted of the charge against him.
    

THE COURT

---

^[1] CRC No. 342 of 2009 at p.1.
^[2] R v Iroi Unrep. Criminal Case No. 17 of 1991; R v Gere [1980/81] SILR 145.
^[3] R v Cummings [1948] 1 ALL ER 551.