Regina v Tiare [2013] SBHC 106; HCSI-CRC 375 of 2009 (26 July 2013)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 375 of 2009

REGINA

-V-

SIPORO TIARE

Hearing: 22 July 2013
Judgment: 26 July 2013

JUDGMENT

F. Joel for the Crown
K Anderson for the Defendant

Palmer CJ.

1. The defendant, Siporo Tiare ("the Defendant") is charged with one count of defilement contrary to section 143(1)(a) of the Penal Code that he had unlawful sexual intercourse with a girl between the age of thirteen and fifteen years on the 5th of April 2008.
   
2. He was initially charged with rape but immediately before the trial started the victim changed her version and admitted that the sexual intercourse was consensual. The information accordingly had to be amended.
   

The Law

3. The proviso to section 143(1)(a) provides a defence, which is relied on in this case. It states:
   

"Provided that it shall be a sufficient defence to any charge under paragraph (a) of this subsection if it shall be made to appear to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of fifteen years."

4. The defendant pleads this defence that he had reasonable cause to believe and in fact believed that the girl was above the age of fifteen years.
   
5. Once the defence has been raised and relevant evidence introduced to support the case for the defence, it is for Prosecution to disprove that beyond reasonable doubt.
   

The Issue

6. The issue in this case is whether the defendant had reasonable cause to believe and in fact believed that the girl was above the age of fifteen years.
   

The prosecution case

7. It is not in dispute that the victim was 14 years at the time of the offence. The sister of the victim and with whom she was staying with described her appearance and behavior as that of a child.
   
8. The victim who gave evidence told the court that when the defendant asked her to be friends she said that she told him that she was only a child. She however conceded that she did not tell him her age.
   

The defence case

9. The case for the defence is based primarily on her physical appearance, that she looked older than her age and therefore it was not unreasonable for the defendant to conclude that she was of age of consent. Mr. Kesaka submits that the description of the victim's appearance were consistent with the belief that she was a big girl. She was described as fat, having a wide body, developed breasts and already wearing a bra. She was also in grade six at that time.
   

Assessment of the evidence

10. The first issue to consider is whether there is material to support the state of mind of the defendant of a reasonable and honest belief. The existence of material, which gives rise to a reasonable cause, ultimately leads to a reasonable belief.
    
11. I am satisfied there is material which gives rise to the existence of a reasonable cause for belief. In that regard the burden remains with prosecution to dislodge that belief beyond reasonable doubt that it could not be reasonably held.
    
12. A number of cases have been referred to which shed some light when considering the issue of reasonable belief. In Regina v. Alfred Anga[1] the question of reasonable belief was considered by the court. The court in that case found otherwise on the following grounds:
    
    • (i) That there was prior knowledge of the victim having resided in one house for a number of years. The defendant is expected to know the age or should have made inquiries in the circumstances. He would have known how young the victim was. This is to be distinguished from this case in which limited contact was made outside of the home environment when the victim was at school.
      
    • (ii) The court had the opportunity to observe the victim giving evidence in court, the hearing being conducted shortly after the incident. This is to be distinguished with this case, which came for hearing some four years later.
      

In a Papua New Guinea case, Ulel v Regina[2], the court discussed the issue of belief on reasonable grounds and pointed out three situations in which evidence of a belief on reasonable grounds could be made out. First, where the victim had misrepresented her age, second, where she had an appearance of an adult and third, where she had acted as an adult. These are issues of fact, which the court may consider when the defence is raised. This brings me to consider in detail various factors relied on as proving or disproving belief on reasonable grounds.

Knowledge of the age of the victim

13. I find no evidence to support any suggestion that the defendant knew the age of the victim. There is also little evidence to support any suggestion that the defendant applied his mind to whether the victim was of age of consent or not.
    
14. The only piece of evidence adduced by prosecution, which relates somewhat to the issue of age came from the victim. She told the court that when the defendant asked her to be his friend she told him that she was only a child. The defendant's response however is consistent with the existence of a reasonable belief because he responded by saying that she had grown up already and was a big girl.
    
15. Apart from this, the victim did not tell the defendant about her age. She also confirmed the defendant did not ask her about her age. This is also consistent with the fact that he may not have had any concerns about her age. Had he asked and been told she was 14 years old, that would have been direct evidence of knowledge of her age and could displace his belief on reasonable grounds. Had she lied about her age that would have strengthened his case; that however, was not the case here.
    
16. Ms. Joel has also sought to argue that the defence of reasonable belief could not be sustained as he had merely assumed the age of the victim in this instance and that the factors noted by the defendant do not necessarily support any reasonable belief. Equally, on the other hand those same factors support the existence of a reasonable belief on the part of the defendant and all things being equal the benefit of the doubt must go in favour of the defendant.
    

Victim's photograph

17. It is rather unfortunate this case took so long to come to court, some five years; the offence occurred in April 2008. The victim was 19 years old when she gave evidence in court and so any reliance on appearances would not have helped.
    
18. Ms. Joel however seeks to rely on a photograph of the victim taken during that period in 2008. The photograph however is a photocopy of the original and not clear. I am unable therefore to accept that much reliance can be placed on it to support any suggestions or conclusion that her appearance at that time was only that of a child.
    
19. The only reliable evidence as to her appearance came from her sister and from the defendant. I am not satisfied the evidence adduced on this has displaced the onus on prosecution that merely by looking at her one can safely come to the conclusion that she was below the age of fifteen years.
    

It is important to note the age difference between the sister and the defendant. While the sister was a mature woman, the defendant was only a teenager, of the same age range as the victim. He was sixteen years old at that time, his observations and perception therefore should be viewed from the lens of a sixteen year old. I think it is reasonable to note that the observation of an adult as opposed to that of a sixteen year old are not necessarily the same. While more accountability and responsibility can be imputed to an adult, having acquired over the years knowledge, experience and learning, the same cannot be said of a sixteen year. His faculties are yet to be fully developed to maturity through the sands of time and experience and so it may not be possible to draw the same expectation or conclusion from him.

Prior existing relationship

20. The defendant came to know the victim and develop a relationship with her when he worked as a maintenance man at the school. There was some discrepancy as to the period of their acquaintance; the victim said something of about 2 to 3 months while the defendant said about 2 weeks. I am not satisfied however this discrepancy is of any significance for the evidence adduced showed that contact was made at school when the victim and the defendant met and pass each other each day, which led to arrangements to meet and culminated in consensual sexual intercourse.
    
21. I am not satisfied it has been established by prosecution that the defendant acquired sufficient knowledge of the age of the victim by virtue of the pre-existing relationship between them. There is little evidence to suggest that he applied his mind to this issue, enquired about her age, or cared less whether she was of age or not. His response to her that she was a big girl is consistent with his position of a reasonable belief.
    

Knowledge that the victim was in primary school and in grade six

22. Ms. Joel further seeks to submit that knowledge of the victim that she was in grade six in primary school should have alerted him to the possibility that she was below the age of consent. The evidence adduced however does not support such proposition. In her evidence, the victim told the court that the majority of students in grade six were above 15 years old. She said there was only one other student apart from herself who were 14 years. I am not satisfied accordingly this shifts the scale of proof in favour of prosecution.
    

Appearance of an adult

23. I have already touched on this and do not need to reiterate what has been referred to earlier that prosecution have not discharged the onus placed on them to displace the belief of the defendant that she was above the age of consent.
    

Acted as an adult

24. I have also touched on this that there is little evidence to dispel the belief that the defendant held, that the victim was not of consenting age. The evidence of the sister that the victim's behavior was like that of a child was based on her observations at home. This case can be distinguished from other cases where an accused may have been resident in the same home for a length of time and so expected to have cognizance of the age of the victim. The only contact or communication between her and the defendant were when she was at school. It is possible her behavior and conduct may have been somewhat different in that regard. In any event I am not satisfied the necessary burden of proof had been discharged in respect of this point.
    

Conclusion

25. I am not satisfied prosecution have displaced the belief of the defendant based on reasonable grounds that he did not and could not have been expected to hold such belief as to the age of the victim. Accordingly, prosecution has failed to prove beyond reasonable doubt the charge of defilement and a verdict of not guilty will have to be entered. The defendant is therefore acquitted.
    

Orders of the Court:

1. Find the defendant not guilty of the charge of defilement and acquit him accordingly.
   

The Court

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^[1] [2012] SBHC 148; HCSI-CRC 159 of 2012
^[2] [1973] PGSC 50; [1973] PNGLR 254